Committee Report

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113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-148
======================================================================
COAL RESIDUALS REUSE AND MANAGEMENT ACT OF 2013
_______
July 10, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2218]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2218) to amend subtitle D of the Solid Waste
Disposal Act to encourage recovery and beneficial use of coal
combustion residuals and establish requirements for the proper
management and disposal of coal combustion residuals that are
protective of human health and the environment, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 13
Background and Need for Legislation.............................. 13
Hearings......................................................... 15
Committee Consideration.......................................... 15
Committee Votes.................................................. 16
Committee Oversight Findings..................................... 22
Statement of General Performance Goals and Objectives............ 22
New Budget Authority, Entitlement Authority, and Tax Expenditures 22
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 22
Committee Cost Estimate.......................................... 22
Congressional Budget Office Estimate............................. 22
Federal Mandates Statement....................................... 25
Duplication of Federal Programs.................................. 25
Disclosure of Directed Rule Makings.............................. 25
Advisory Committee Statement..................................... 25
Applicability to Legislative Branch.............................. 25
Section-by-Section Analysis of the Legislation................... 25
Changes in Existing Law Made by the Bill, as Reported............ 39
Minority, Additional or Dissenting Views......................... 57
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Coal Residuals Reuse
and Management Act of 2013''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Management and disposal of coal combustion residuals.
Sec. 3. 2000 regulatory determination.
Sec. 4. Technical assistance.
Sec. 5. Federal Power Act.
SEC. 2. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS.
(a) In General.--Subtitle D of the Solid Waste Disposal Act (42
U.S.C. 6941 et seq.) is amended by adding at the end the following:
``SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS.
``(a) State Permit Programs for Coal Combustion Residuals.--Each
State may adopt, implement, and enforce a coal combustion residuals
permit program if such State provides the notification required under
subsection (b)(1), and the certification required under subsection
(b)(2).
``(b) State Actions.--
``(1) Notification.--Not later than 6 months after the date
of enactment of this section (except as provided by the
deadline identified under subsection (d)(3)(B)), the Governor
of each State shall notify the Administrator, in writing,
whether such State will adopt and implement a coal combustion
residuals permit program.
``(2) Certification.--
``(A) In general.--Not later than 36 months after the
date of enactment of this section (except as provided
in subsection (f)(1)(A)), in the case of a State that
has notified the Administrator that it will implement a
coal combustion residuals permit program, the head of
the lead State implementing agency shall submit to the
Administrator a certification that such coal combustion
residuals permit program meets the requirements
described in subsection (c).
``(B) Contents.--A certification submitted under this
paragraph shall include--
``(i) a letter identifying the lead State
implementing agency, signed by the head of such
agency;
``(ii) identification of any other State
agencies involved with the implementation of
the coal combustion residuals permit program;
``(iii) an explanation of how the State coal
combustion residuals permit program meets the
requirements of this section, including a
description of the State's--
``(I) process to inspect or otherwise
determine compliance with such permit
program;
``(II) process to enforce the
requirements of such permit program;
``(III) public participation process
for the promulgation, amendment, or
repeal of regulations for, and the
issuance of permits under, such permit
program;
``(IV) statutes, regulations, or
policies pertaining to public access to
information, such as groundwater
monitoring data; and
``(V) statutes, regulations, or
policies pertaining to structural
integrity or dam safety that may be
applied to structures through such
permit program;
``(iv) a certification that the State has in
effect, at the time of certification, statutes
or regulations necessary to implement a coal
combustion residuals permit program that meets
the requirements described in subsection (c);
and
``(v) copies of State statutes and
regulations described in clause (iv).
``(C) Updates.--A State may update the certification
as needed to reflect changes to the coal combustion
residuals permit program.
``(3) Maintenance of 4005(c) or 3006 program.--In order to
adopt or implement a coal combustion residuals permit program
under this section (including pursuant to subsection (f)), the
State implementing agency shall maintain an approved permit
program or other system of prior approval and conditions under
section 4005(c) or an authorized program under section 3006.
``(c) Requirements for a Coal Combustion Residuals Permit Program.--A
coal combustion residuals permit program shall consist of the
following:
``(1) General requirements.--
``(A) In general.--The implementing agency shall--
``(i) apply the subset of the revised
criteria described in paragraph (2) to owners
or operators of structures, including surface
impoundments, that receive coal combustion
residuals on or after the date of enactment of
this section;
``(ii) with respect to structures that are
receiving coal combustion residuals as of the
date of enactment of this section, take the
actions required under paragraph (3);
``(iii) impose requirements for surface
impoundments that do not meet certain criteria
pursuant to paragraph (4); and
``(iv) require that closure of structures
occur in accordance with paragraph (5).
``(B) Structural integrity.--
``(i) Engineering certification.--The
implementing agency shall require that an
independent registered professional engineer
certify that--
``(I) the design of each structure
that receives coal combustion residuals
on or after the date of enactment of
this section is in accordance with
recognized and generally accepted good
engineering practices for containment
of the maximum volume of coal
combustion residuals and liquids which
can be impounded therein; and
``(II) the construction and
maintenance of the structure will
ensure structural stability.
``(ii) Emergency action plan.--The
implementing agency shall require that the
owner or operator of any structure that is a
surface impoundment that receives coal
combustion residuals on or after the date of
enactment of this section and that is
classified by the State as posing a high hazard
potential pursuant to the guidelines published
by the Federal Emergency Management Agency
entitled `Federal Guidelines for Dam Safety:
Hazard Potential Classification System for
Dams' (FEMA Publication Number 333) prepare and
maintain an emergency action plan that
identifies responsible persons and actions to
be taken in the event of a dam safety
emergency.
``(iii) Inspection.--
``(I) In general.--The implementing
agency shall require that structures
that are surface impoundments that
receive coal combustion residuals on or
after the date of enactment of this
section be inspected not less than
annually by an independent registered
professional engineer to assure that
the design, operation, and maintenance
of the surface impoundment is in
accordance with recognized and
generally accepted good engineering
practices for containment of the
maximum volume of coal combustion
residuals and liquids which can be
impounded therein, so as to ensure dam
stability.
``(II) Potentially hazardous
conditions.--The implementing agency
shall require that if an inspection
under subclause (I), or a periodic
evaluation under clause (iv), reveals a
potentially hazardous condition, the
owner or operator of the structure
shall immediately take action to
mitigate the potentially hazardous
condition and notify appropriate State
and local first responders.
``(iv) Periodic evaluation.--The implementing
agency shall require that structures that are
surface impoundments that receive coal
combustion residuals on or after the date of
enactment of this section be periodically
evaluated for appearances of structural
weakness.
``(v) Deficiency.--
``(I) In general.--If the head of the
implementing agency determines that a
structure is deficient with respect to
the requirements in clause (i), (iii),
or (iv), the head of the agency has the
authority to require action to correct
the deficiency according to a schedule
determined by the agency.
``(II) Uncorrected deficiencies.--If
a deficiency is not corrected according
to the schedule, the head of the
implementing agency has the authority
to require that the structure close in
accordance with paragraph (5).
``(III) Dam safety consultation.--In
the case of a structure that is a
surface impoundment, the head of the
implementing agency shall, in making a
determination under subclause (I),
consult with appropriate State dam
safety officials.
``(C) Location.--The implementing agency shall
require that structures that first receive coal
combustion residuals on or after the date of enactment
of this section shall be constructed with a base
located a minimum of 2 feet above the upper limit of
the water table, unless it is demonstrated to the
satisfaction of the implementing agency that--
``(i) the hydrogeologic characteristics of a
structure and surrounding land would preclude
such a requirement; and
``(ii) the function and integrity of the
liner system will not be adversely impacted by
contact with the water table.
``(D) Wind dispersal.--
``(i) In general.--The implementing agency
shall require that owners or operators of
structures that receive coal combustion
residuals on or after the date of enactment of
this section address wind dispersal of dust by
requiring cover, or by wetting coal combustion
residuals with water to a moisture content that
prevents wind dispersal, facilitates
compaction, and does not result in free
liquids.
``(ii) Alternative methods.--Subject to the
review and approval by the implementing agency,
owners or operators of structures that receive
coal combustion residuals on or after the date
of enactment of this section may propose
alternative methods to address wind dispersal
of dust that will provide comparable or more
effective control of dust.
``(E) Permits.--The implementing agency shall require
that owners or operators of structures that receive
coal combustion residuals on or after the date of
enactment of this section apply for and obtain permits
incorporating the requirements of the coal combustion
residuals permit program.
``(F) Public availability of information.--Except for
information with respect to which disclosure is
prohibited under section 1905 of title 18, United
States Code, the implementing agency shall ensure
that--
``(i) documents for permit determinations are
made available for public review and comment
under the public participation process
described in subsection (b)(2)(B)(iii)(III) or
in subsection (e)(6), as applicable;
``(ii) final determinations on permit
applications are made known to the public; and
``(iii) groundwater monitoring data collected
under paragraph (2) is publicly available.
``(G) Agency authority.--
``(i) In general.--The implementing agency
has the authority to--
``(I) obtain information necessary to
determine whether the owner or operator
of a structure is in compliance with
the requirements of this subsection;
``(II) conduct or require monitoring
and testing to ensure that structures
are in compliance with the requirements
of this subsection; and
``(III) enter, at reasonable times,
any site or premise subject to the coal
combustion residuals permit program for
the purpose of inspecting structures
and reviewing records relevant to the
design, operation, and maintenance of
structures.
``(ii) Monitoring and testing.--If monitoring
or testing is conducted under clause (i)(II) by
or for the implementing agency, the
implementing agency shall, if requested,
provide to the owner or operator--
``(I) a written description of the
monitoring or testing completed;
``(II) at the time of sampling, a
portion of each sample equal in volume
or weight to the portion retained by or
for the implementing agency; and
``(III) a copy of the results of any
analysis of samples collected by or for
the implementing agency.
``(2) Revised criteria.--The subset of the revised criteria
referred to in paragraph (1)(A)(i) are as follows:
``(A) Design requirements.--For new structures, and
lateral expansions of existing structures, that first
receive coal combustion residuals on or after the date
of enactment of this section, the revised criteria
regarding design requirements described in section
258.40 of title 40, Code of Federal Regulations, except
that the leachate collection system requirements
described in section 258.40(a)(2) of title 40, Code of
Federal Regulations, do not apply to structures that
are surface impoundments.
``(B) Groundwater monitoring and corrective action.--
For all structures that receive coal combustion
residuals on or after the date of enactment of this
section, the revised criteria regarding groundwater
monitoring and corrective action requirements described
in subpart E of part 258 of title 40, Code of Federal
Regulations, except that, for the purposes of this
subparagraph, the revised criteria shall also include--
``(i) for the purposes of detection
monitoring, the constituents boron, chloride,
conductivity, fluoride, mercury, pH, sulfate,
sulfide, and total dissolved solids; and
``(ii) for the purposes of assessment
monitoring, establishing a groundwater
protection standard, and assessment of
corrective measures, the constituents aluminum,
boron, chloride, fluoride, iron, manganese,
molybdenum, pH, sulfate, and total dissolved
solids.
``(C) Closure.--For all structures that receive coal
combustion residuals on or after the date of enactment
of this section, in a manner consistent with paragraph
(5), the revised criteria for closure described in
subsections (a) through (c) and (h) through (j) of
section 258.60 of title 40, Code of Federal
Regulations.
``(D) Post-closure.--For all structures that receive
coal combustion residuals on or after the date of
enactment of this section, the revised criteria for
post-closure care described in section 258.61 of title
40, Code of Federal Regulations, except for the
requirement described in subsection (a)(4) of that
section.
``(E) Location restrictions.--The revised criteria
for location restrictions described in--
``(i) for new structures, and lateral
expansions of existing structures, that first
receive coal combustion residuals on or after
the date of enactment of this section, sections
258.11 through 258.15 of title 40, Code of
Federal Regulations; and
``(ii) for existing structures that receive
coal combustion residuals on or after the date
of enactment of this section, sections 258.11
and 258.15 of title 40, Code of Federal
Regulations.
``(F) Air quality.--For all structures that receive
coal combustion residuals on or after the date of
enactment of this section, the revised criteria for air
quality described in section 258.24 of title 40, Code
of Federal Regulations.
``(G) Financial assurance.--For all structures that
receive coal combustion residuals on or after the date
of enactment of this section, the revised criteria for
financial assurance described in subpart G of part 258
of title 40, Code of Federal Regulations.
``(H) Surface water.--For all structures that receive
coal combustion residuals on or after the date of
enactment of this section, the revised criteria for
surface water described in section 258.27 of title 40,
Code of Federal Regulations.
``(I) Recordkeeping.--For all structures that receive
coal combustion residuals on or after the date of
enactment of this section, the revised criteria for
recordkeeping described in section 258.29 of title 40,
Code of Federal Regulations.
``(J) Run-on and run-off control systems for land-
based units.--For all landfills and other land-based
units, other than surface impoundments, that receive
coal combustion residuals on or after the date of
enactment of this section, the revised criteria for
run-on and run-off control systems described in section
258.26 of title 40, Code of Federal Regulations.
``(K) Run-off control systems for surface
impoundments.--For all surface impoundments that
receive coal combustion residuals on or after the date
of enactment of this section, the revised criteria for
run-off control systems described in section
258.26(a)(2) of title 40, Code of Federal Regulations.
``(3) Permit program implementation for existing
structures.--
``(A) Notification.--Not later than the date on which
a State submits a certification under subsection
(b)(2), not later than 30 months after the
Administrator receives notice under subsection
(e)(1)(A), or not later than 36 months after the date
of enactment of this section with respect to a coal
combustion residuals permit program that is being
implemented by the Administrator under subsection
(e)(3), as applicable, the implementing agency shall
notify owners or operators of structures that are
receiving coal combustion residuals as of the date of
enactment of this section within the State of--
``(i) the obligation to apply for and obtain
a permit under subparagraph (C); and
``(ii) the requirements referred to in
subparagraph (B).
``(B) Compliance with certain requirements.--Not
later than 12 months after the date on which a State
submits a certification under subsection (b)(2), not
later than 42 months after the Administrator receives
notice under subsection (e)(1)(A), or not later than 48
months after the date of enactment of this section with
respect to a coal combustion residuals permit program
that is being implemented by the Administrator under
subsection (e)(3), as applicable, the implementing
agency shall require owners or operators of structures
that are receiving coal combustion residuals as of the
date of enactment of this section to comply with--
``(i) the requirements under paragraphs
(1)(B)(ii) and (iii), (1)(D), (2)(B), (2)(F),
(2)(H), (2)(J), and (2)(K); and
``(ii) the groundwater recordkeeping
requirement described in section 258.29(a)(5)
of title 40, Code of Federal Regulations.
``(C) Permits.--
``(i) Permit deadline.--Not later than 48
months after the date on which a State submits
a certification under subsection (b)(2), not
later than 78 months after the Administrator
receives notice under subsection (e)(1)(A), or
not later than 84 months after the date of
enactment of this section with respect to a
coal combustion residuals permit program that
is being implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall issue, with respect
to a structure that is receiving coal
combustion residuals as of the date of
enactment of this section, a final permit
incorporating the requirements of the coal
combustion residuals permit program, or a final
denial for an application submitted requesting
such a permit.
``(ii) Application deadline.--The
implementing agency shall identify, in
collaboration with the owner or operator of a
structure described in clause (i), a reasonable
deadline by which the owner or operator shall
submit a permit application under such clause.
``(D) Interim operation.--
``(i) Prior to deadlines.--With respect to
any period of time on or after the date of
enactment of this section but prior to the
applicable deadline in subparagraph (B), the
owner or operator of a structure that is
receiving coal combustion residuals as of the
date of enactment of this section may continue
to operate such structure until such applicable
deadline under the applicable authority in
effect.
``(ii) Prior to permit.--Unless the
implementing agency determines that the
structure should close pursuant to paragraph
(5), if the owner or operator of a structure
that is receiving coal combustion residuals as
of the date of enactment of this section meets
the requirements referred to in subparagraph
(B) by the applicable deadline in such
subparagraph, the owner or operator may operate
the structure until such time as the
implementing agency issues, under subparagraph
(C), a final permit incorporating the
requirements of the coal combustion residuals
permit program, or a final denial for an
application submitted requesting such a permit.
``(4) Requirements for surface impoundments that do not meet
certain criteria.--
``(A) Surface impoundments that require assessment of
corrective measures within 10 years of the date of
enactment.--
``(i) In general.--In addition to the
groundwater monitoring and corrective action
requirements described in paragraph (2)(B), the
implementing agency shall require a surface
impoundment that receives coal combustion
residuals on or after the date of enactment of
this section to comply with the requirements in
clause (ii) of this subparagraph and clauses
(i) and (ii) of subparagraph (D) if the surface
impoundment--
``(I) does not--
``(aa) have a liner system
described in section 258.40(b)
of title 40, Code of Federal
Regulations; and
``(bb) meet the design
criteria described in section
258.40(a)(1) of title 40, Code
of Federal Regulations; and
``(II) within 10 years after the date
of enactment of this section, is
required under section 258.56(a) of
title 40, Code of Federal Regulations,
to undergo an assessment of corrective
measures for any constituent covered
under subpart E of part 258 of title
40, Code of Federal Regulations, or
otherwise identified in paragraph
(2)(B)(ii) of this subsection, for
which assessment groundwater monitoring
is required.
``(ii) Deadline to meet groundwater
protection standard.--Except as provided in
subparagraph (C), the implementing agency shall
require that the groundwater protection
standard, for surface impoundments identified
in clause (i) of this subparagraph, established
by the implementing agency under section
258.55(h) or 258.55(i) of title 40, Code of
Federal Regulations, for any constituent for
which corrective measures are required shall be
met--
``(I) as soon as practicable at the
relevant point of compliance, as
described in section 258.40(d) of title
40, Code of Federal Regulations; and
``(II) not later than 10 years after
the date of enactment of this section.
``(B) Surface impoundments subject to a state
corrective action requirement as of the date of
enactment.--
``(i) In general.--In addition to the
groundwater monitoring and corrective action
requirements described in paragraph (2)(B), the
implementing agency shall require a surface
impoundment that receives coal combustion
residuals on or after the date of enactment of
this section to comply with the requirements in
clause (ii) of this subparagraph and clauses
(i) and (ii) of subparagraph (D) if the surface
impoundment--
``(I) does not--
``(aa) have a liner system
described in section 258.40(b)
of title 40, Code of Federal
Regulations; and
``(bb) meet the design
criteria described in section
258.40(a)(1) of title 40, Code
of Federal Regulations; and
``(II) as of the date of enactment of
this section, is subject to a State
corrective action requirement.
``(ii) Deadline to meet groundwater
protection standard.--Except as provided in
subparagraph (C), the implementing agency shall
require that the groundwater protection
standard, for surface impoundments identified
in clause (i) of this subparagraph, established
by the implementing agency under section
258.55(h) or 258.55(i) of title 40, Code of
Federal Regulations, for any constituent for
which corrective measures are required shall be
met--
``(I) as soon as practicable at the
relevant point of compliance, as
described in section 258.40(d) of title
40, Code of Federal Regulations; and
``(II) not later than 8 years after
the date of enactment of this section.
``(C) Extension of deadline.--
``(i) In general.--Except as provided in
clause (ii) of this subparagraph, the deadline
for meeting a groundwater protection standard
under subparagraph (A)(ii) or (B)(ii) may be
extended by the implementing agency, after
opportunity for public notice and comment under
the public participation process described in
subsection (b)(2)(B)(iii)(III), or in
subsection (e)(6) based on--
``(I) the effectiveness of any
interim measures implemented by the
owner or operator of the facility under
section 258.58(a)(3) of title 40, Code
of Federal Regulations;
``(II) the level of progress
demonstrated in meeting the groundwater
protection standard;
``(III) the potential for other
adverse human health or environmental
exposures attributable to the
contamination from the surface
impoundment undergoing corrective
action; and
``(IV) the lack of available
alternative management capacity for the
coal combustion residuals and related
materials managed in the impoundment at
the facility at which the impoundment
is located if the owner or operator has
used best efforts, as necessary, to
design, obtain any necessary permits,
finance, construct, and render
operational the alternative management
capacity during the time period for
meeting a groundwater protection
standard in subparagraph (A)(ii) or
(B)(ii).
``(ii) Exception.--The deadline under
subparagraph (A)(ii) or (B)(ii) shall not be
extended if there has been contamination of
public or private drinking water systems
attributable to a surface impoundment
undergoing corrective action, unless the
contamination has been addressed by providing a
permanent replacement water system.
``(D) Additional requirements.--
``(i) Closure.--If the deadline under
subparagraph (A)(ii), (B)(ii), or (C) is not
satisfied, the surface impoundment shall cease
receiving coal combustion residuals and
initiate closure under paragraph (5).
``(ii) Interim measures.--
``(I) In general.--Except as provided
in subclause (II), not later than 90
days after the date on which the
assessment of corrective measures is
initiated, the owner or operator of a
surface impoundment described in
subparagraph (A) or (B) shall implement
interim measures, as necessary, under
the factors in section 258.58(a)(3) of
title 40, Code of Federal Regulations.
``(II) Impoundments subject to state
corrective action requirement as of the
date of enactment.--Subclause (I) shall
only apply to surface impoundments
subject to a State corrective action
requirement as of the date of enactment
of this section if the owner or
operator has not implemented interim
measures, as necessary, under the
factors in section 258.58(a)(3) of
title 40, Code of Federal Regulations.
``(E) Surface impoundments that require assessment of
corrective measures more than 10 years after date of
enactment.--
``(i) In general.--In addition to the
groundwater monitoring and corrective action
requirements described in paragraph (2)(B), the
implementing agency shall require a surface
impoundment that receives coal combustion
residuals on or after the date of enactment of
this section to comply with the requirements in
clause (ii) if the surface impoundment--
``(I) does not--
``(aa) have a liner system
described in section 258.40(b)
of title 40, Code of Federal
Regulations; and
``(bb) meet the design
criteria described in section
258.40(a)(1) of title 40, Code
of Federal Regulations; and
``(II) more than 10 years after the
date of enactment of this section, is
required under section 258.56(a) title
40, Code of Federal Regulations, to
undergo an assessment of corrective
measures for any constituent covered
under subpart E of part 258 of title
40, Code of Federal Regulations, or
otherwise identified in paragraph
(2)(B)(ii) of this subsection, for
which assessment groundwater monitoring
is required.
``(ii) Requirements.--
``(I) Closure.--The surface
impoundments identified in clause (i)
shall cease receiving coal combustion
residuals and initiate closure in
accordance with paragraph (5) after
alternative management capacity at the
facility is available for the coal
combustion residuals and related
materials managed in the impoundment.
``(II) Best efforts.--The alternative
management capacity shall be developed
as soon as practicable with the owner
or operator using best efforts to
design, obtain necessary permits for,
finance, construct, and render
operational the alternative management
capacity.
``(III) Alternative capacity
management plan.--The owner or operator
shall, in collaboration with the
implementing agency, prepare a written
plan that describes the steps necessary
to develop the alternative management
capacity and includes a schedule for
completion.
``(IV) Public participation.--The
plan described in subclause (III) shall
be subject to public notice and comment
under the public participation process
described in subsection
(b)(2)(B)(iii)(III) or in subsection
(e)(6), as applicable.
``(5) Closure.--
``(A) In general.--If it is determined by the
implementing agency that a structure should close
because the requirements of a coal combustion residuals
permit program are not being satisfied with respect to
such structure, or if it is determined by the owner or
operator that a structure should close, the time period
and method for the closure of such structure shall be
set forth in a closure plan that establishes a deadline
for completion of closure as soon as practicable and
that takes into account the nature and the site-
specific characteristics of the structure to be closed.
``(B) Surface impoundment.--In the case of a surface
impoundment, the closure plan under subparagraph (A)
shall require, at a minimum, the removal of liquid and
the stabilization of remaining waste, as necessary to
support the final cover.
``(d) Federal Review of State Permit Programs.--
``(1) In general.--The Administrator shall provide to a State
written notice and an opportunity to remedy deficiencies in
accordance with paragraph (3) if at any time the State--
``(A) does not satisfy the notification requirement
under subsection (b)(1);
``(B) has not submitted a certification required
under subsection (b)(2);
``(C) does not satisfy the maintenance requirement
under subsection (b)(3);
``(D) is not implementing a coal combustion residuals
permit program, with respect to which the State has
submitted a certification under subsection (b)(2), that
meets the requirements described in subsection (c);
``(E) is not implementing a coal combustion residuals
permit program, with respect to which the State has
submitted a certification under subsection (b)(2)--
``(i) that is consistent with such
certification; and
``(ii) for which the State continues to have
in effect statutes or regulations necessary to
implement such program; or
``(F) does not make available to the Administrator,
within 90 days of a written request, specific
information necessary for the Administrator to
ascertain whether the State has satisfied the
requirements described in subparagraphs (A) through
(E).
``(2) Request.--If a request described in paragraph (1)(F) is
proposed pursuant to a petition to the Administrator, the
Administrator shall only make the request if the Administrator
does not possess the information necessary to ascertain whether
the State has satisfied the requirements described in
subparagraphs (A) through (E) of such paragraph.
``(3) Contents of notice; deadline for response.--A notice
provided under paragraph (1) shall--
``(A) include findings of the Administrator detailing
any applicable deficiencies described in subparagraphs
(A) through (F) of paragraph (1); and
``(B) identify, in collaboration with the State, a
reasonable deadline by which the State shall remedy
such applicable deficiencies, which shall be--
``(i) in the case of a deficiency described
in subparagraphs (A) through (E) of paragraph
(1), not earlier than 180 days after the date
on which the State receives the notice; and
``(ii) in the case of a deficiency described
in paragraph (1)(F), not later than 90 days
after the date on which the State receives the
notice.
``(4) Criteria for determining deficiency of state permit
program.--In making a determination whether a State has failed
to satisfy the requirements described in subparagraphs (A)
through (E) of paragraph (1), or a determination under
subsection (e)(1)(B), the Administrator shall consider, as
appropriate--
``(A) whether the State's statutes or regulations to
implement a coal combustion residuals permit program
are not sufficient to meet the requirements described
in subsection (c) because of--
``(i) failure of the State to promulgate or
enact new statutes or regulations when
necessary; or
``(ii) action by a State legislature or court
striking down or limiting such State statutes
or regulations;
``(B) whether the operation of the State coal
combustion residuals permit program fails to comply
with the requirements of subsection (c) because of--
``(i) failure of the State to issue permits
as required in subsection (c)(1)(E);
``(ii) repeated issuance of permits by the
State which do not meet the requirements of
subsection (c);
``(iii) failure of the State to comply with
the public participation requirements of this
section; or
``(iv) failure of the State to implement
corrective action requirements as described in
subsection (c)(2)(B); and
``(C) whether the enforcement of a State coal
combustion residuals permit program fails to comply
with the requirements of this section because of--
``(i) failure to act on violations of
permits, as identified by the State; or
``(ii) repeated failure by the State to
inspect or otherwise determine compliance
pursuant to the process identified in
subsection (b)(2)(B)(iii)(I).
``(e) Implementation by Administrator.--
``(1) Federal backstop authority.--The Administrator shall
implement a coal combustion residuals permit program for a
State only if--
``(A) the Governor of the State notifies the
Administrator under subsection (b)(1) that the State
will not adopt and implement a permit program;
``(B) the State has received a notice under
subsection (d) and the Administrator determines, after
providing a 30-day period for notice and public
comment, that the State has failed, by the deadline
identified in the notice under subsection (d)(3)(B), to
remedy the deficiencies detailed in the notice under
subsection (d)(3)(A); or
``(C) the State informs the Administrator, in
writing, that such State will no longer implement such
a permit program.
``(2) Review.--A State may obtain a review of a determination
by the Administrator under this subsection as if the
determination was a final regulation for purposes of section
7006.
``(3) Other structures.--For structures that receive coal
combustion residuals on or after the date of enactment of this
section located on property within the exterior boundaries of a
State that the State does not have authority or jurisdiction to
regulate, the Administrator shall implement a coal combustion
residuals permit program only for those structures.
``(4) Requirements.--If the Administrator implements a coal
combustion residuals permit program for a State under paragraph
(1) or (3), the permit program shall consist of the
requirements described in subsection (c).
``(5) Enforcement.--
``(A) In general.--If the Administrator implements a
coal combustion residuals permit program for a State
under paragraph (1)--
``(i) the authorities referred to in section
4005(c)(2)(A) shall apply with respect to coal
combustion residuals and structures for which
the Administrator is implementing the coal
combustion residuals permit program; and
``(ii) the Administrator may use those
authorities to inspect, gather information, and
enforce the requirements of this section in the
State.
``(B) Other structures.--If the Administrator
implements a coal combustion residuals permit program
under paragraph (3)--
``(i) the authorities referred to in section
4005(c)(2)(A) shall apply with respect to coal
combustion residuals and structures for which
the Administrator is implementing the coal
combustion residuals permit program; and
``(ii) the Administrator may use those
authorities to inspect, gather information, and
enforce the requirements of this section for
the structures for which the Administrator is
implementing the coal combustion residuals
permit program.
``(6) Public participation process.--If the Administrator
implements a coal combustion residuals permit program for a
State under this subsection, the Administrator shall provide a
30-day period for the public participation process required in
paragraphs (1)(F)(i), (4)(C)(i), and (4)(E)(ii)(IV) of
subsection (c).
``(f) State Control After Implementation by Administrator.--
``(1) State control.--
``(A) New adoption, or resumption of, and
implementation by state.--For a State for which the
Administrator is implementing a coal combustion
residuals permit program under subsection (e)(1)(A), or
subsection (e)(1)(C), the State may adopt and implement
such a permit program by--
``(i) notifying the Administrator that the
State will adopt and implement such a permit
program;
``(ii) not later than 6 months after the date
of such notification, submitting to the
Administrator a certification under subsection
(b)(2); and
``(iii) receiving from the Administrator--
``(I) a determination, after
providing a 30-day period for notice
and public comment, that the State coal
combustion residuals permit program
meets the requirements described in
subsection (c); and
``(II) a timeline for transition of
control of the coal combustion
residuals permit program.
``(B) Remedying deficient permit program.--For a
State for which the Administrator is implementing a
coal combustion residuals permit program under
subsection (e)(1)(B), the State may adopt and implement
such a permit program by--
``(i) remedying only the deficiencies
detailed in the notice pursuant to subsection
(d)(3)(A); and
``(ii) receiving from the Administrator--
``(I) a determination, after
providing a 30-day period for notice
and public comment, that the
deficiencies detailed in such notice
have been remedied; and
``(II) a timeline for transition of
control of the coal combustion
residuals permit program.
``(2) Review of determination.--
``(A) Determination required.--The Administrator
shall make a determination under paragraph (1) not
later than 90 days after the date on which the State
submits a certification under paragraph (1)(A)(ii), or
notifies the Administrator that the deficiencies have
been remedied pursuant to paragraph (1)(B)(i), as
applicable.
``(B) Review.--A State may obtain a review of a
determination by the Administrator under paragraph (1)
as if such determination was a final regulation for
purposes of section 7006.
``(3) Implementation during transition.--
``(A) Effect on actions and orders.--Program
requirements of, and actions taken or orders issued
pursuant to, a coal combustion residuals permit program
shall remain in effect if--
``(i) a State takes control of its coal
combustion residuals permit program from the
Administrator under paragraph (1); or
``(ii) the Administrator takes control of a
coal combustion residuals permit program from a
State under subsection (e).
``(B) Change in requirements.--Subparagraph (A) shall
apply to such program requirements, actions, and orders
until such time as--
``(i) the implementing agency changes the
requirements of the coal combustion residuals
permit program with respect to the basis for
the action or order; or
``(ii) the State or the Administrator,
whichever took the action or issued the order,
certifies the completion of a corrective action
that is the subject of the action or order.
``(4) Single permit program.--If a State adopts and
implements a coal combustion residuals permit program under
this subsection, the Administrator shall cease to implement the
permit program implemented under subsection (e)(1) for such
State.
``(g) Effect on Determination Under 4005(c) or 3006.--The
Administrator shall not consider the implementation of a coal
combustion residuals permit program by the Administrator under
subsection (e) in making a determination of approval for a permit
program or other system of prior approval and conditions under section
4005(c) or of authorization for a program under section 3006.
``(h) Authority.--
``(1) State authority.--Nothing in this section shall
preclude or deny any right of any State to adopt or enforce any
regulation or requirement respecting coal combustion residuals
that is more stringent or broader in scope than a regulation or
requirement under this section.
``(2) Authority of the administrator.--
``(A) In general.--Except as provided in subsections
(d) and (e) and section 6005, the Administrator shall,
with respect to the regulation of coal combustion
residuals, defer to the States pursuant to this
section.
``(B) Imminent hazard.--Nothing in this section shall
be construed as affecting the authority of the
Administrator under section 7003 with respect to coal
combustion residuals.
``(C) Enforcement assistance only upon request.--Upon
request from the head of a lead State agency that is
implementing a coal combustion residuals permit
program, the Administrator may provide to such State
agency only the enforcement assistance requested.
``(D) Concurrent enforcement.--Except as provided in
subparagraph (C), the Administrator shall not have
concurrent enforcement authority when a State is
implementing a coal combustion residuals permit
program, including during any period of interim
operation described in subsection (c)(3)(D).
``(E) Other authority.--The Administrator shall not
have authority to finalize the proposed rule published
at pages 35128 through 35264 of volume 75 of the
Federal Register (June 21, 2010).
``(F) Other response authority.--Nothing in this
section shall be construed as affecting the authority
of the Administrator under the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.) with respect to coal
combustion residuals.
``(3) Citizen suits.--Nothing in this section shall be
construed to affect the authority of a person to commence a
civil action in accordance with section 7002.
``(i) Mine Reclamation Activities.--A coal combustion residuals
permit program implemented by the Administrator under subsection (e)
shall not apply to the utilization, placement, and storage of coal
combustion residuals at surface mining and reclamation operations.
``(j) Definitions.--In this section:
``(1) Coal combustion residuals.--The term `coal combustion
residuals' means--
``(A) the solid wastes listed in section
3001(b)(3)(A)(i), including recoverable materials from
such wastes;
``(B) coal combustion wastes that are co-managed with
wastes produced in conjunction with the combustion of
coal, provided that such wastes are not segregated and
disposed of separately from the coal combustion wastes
and comprise a relatively small proportion of the total
wastes being disposed in the structure;
``(C) fluidized bed combustion wastes;
``(D) wastes from the co-burning of coal with non-
hazardous secondary materials, provided that coal makes
up at least 50 percent of the total fuel burned; and
``(E) wastes from the co-burning of coal with
materials described in subparagraph (A) that are
recovered from monofills.
``(2) Coal combustion residuals permit program.--The term
`coal combustion residuals permit program' means all of the
authorities, activities, and procedures that comprise the
system of prior approval and conditions implemented by or for a
State to regulate the management and disposal of coal
combustion residuals.
``(3) Code of federal regulations.--The term `Code of Federal
Regulations' means the Code of Federal Regulations (as in
effect on the date of enactment of this section) or any
successor regulations.
``(4) Implementing agency.--The term `implementing agency'
means the agency responsible for implementing a coal combustion
residuals permit program for a State, which shall either be the
lead State implementing agency identified under subsection
(b)(2)(B)(i) or the Administrator pursuant to subsection (e).
``(5) Permit; prior approval and conditions.--Except as
provided in subsections (b)(3) and (g), the terms `permit' and
`prior approval and conditions' mean any authorization,
license, or equivalent control document that incorporates the
requirements of subsection (c).
``(6) Revised criteria.--The term `revised criteria' means
the criteria promulgated for municipal solid waste landfill
units under section 4004(a) and under section 1008(a)(3), as
revised under section 4010(c).
``(7) Structure.--
``(A) In general.--Except as provided in subparagraph
(B), the term `structure' means a landfill, surface
impoundment, or other land-based unit which receives,
or is intended to receive, coal combustion residuals.
``(B) De minimis receipt.--The term `structure' does
not include any land-based unit that receives only de
minimis quantities of coal combustion residuals if the
presence of coal combustion residuals is incidental to
the material managed in the unit.''.
(b) Conforming Amendment.--The table of contents contained in section
1001 of the Solid Waste Disposal Act is amended by inserting after the
item relating to section 4010 the following:
``Sec. 4011. Management and disposal of coal combustion residuals.''.
SEC. 3. 2000 REGULATORY DETERMINATION.
Nothing in this Act, or the amendments made by this Act, shall be
construed to alter in any manner the Environmental Protection Agency's
regulatory determination entitled ``Notice of Regulatory Determination
on Wastes From the Combustion of Fossil Fuels'', published at 65 Fed.
Reg. 32214 (May 22, 2000), that the fossil fuel combustion wastes
addressed in that determination do not warrant regulation under
subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.).
SEC. 4. TECHNICAL ASSISTANCE.
Nothing in this Act, or the amendments made by this Act, shall be
construed to affect the authority of a State to request, or the
Administrator of the Environmental Protection Agency to provide,
technical assistance under the Solid Waste Disposal Act (42 U.S.C. 6901
et seq.).
SEC. 5. FEDERAL POWER ACT.
Nothing in this Act, or the amendments made by this Act, shall be
construed to affect the obligations of an owner or operator of a
structure (as defined in section 4011 of the Solid Waste Disposal Act,
as added by this Act) under section 215(b)(1) of the Federal Power Act
(16 U.S.C. 824o(b)(1)).
Purpose and Summary
The legislation is a new approach to establishing a permit
program under the Solid Waste Disposal Act (commonly referred
to as the Resource Conservation and Recovery Act or RCRA). It
establishes, in statute, a Federal standard of protection that
consists of minimum requirements that will ensure protection of
human health and the environment. The purpose of the
legislation is to establish the minimum requirements for the
proper management and disposal of materials generated by the
combustion of coal that will be implemented through State-based
permit programs. The minimum requirements in H.R. 2218 utilize
the framework and Federal requirements of the existing
municipal solid waste landfill management program in addition
to other protective, minimum Federal requirements for the
management and disposal of coal combustion residuals. The bill
allows State permit programs to be more stringent than the
minimum requirements outlined in the bill. The legislation also
is intended to encourage recovery and beneficial use of coal
combustion residuals.
Background and Need for Legislation
EPA PROPOSED RULE
On June 21, 2010, the Environmental Protection Agency (EPA)
promulgated a proposed rule to regulate coal combustion
residuals (75 FR 35128) (the ``Proposed Rule''). In the
Proposed Rule, EPA set out three regulatory options for
management of coal combustion residuals. One proposal would
create an enforceable permit program for coal combustion
residuals under Subtitle C of RCRA. The other two proposals
would impose self-implementing requirements under Subtitle D of
RCRA. The second proposal, under Subtitle D, would require the
automatic phase out of surface impoundments regardless of
whether the surface impoundments were structurally sound or
resulting in a release of pollutants to the environment. A
third alternative also would regulate coal combustion residuals
under Subtitle D, but would not require such a phase out of
surface impoundments.
Many stakeholders believe that EPA's proposal to regulate
combustion residuals under Subtitle C of RCRA (under which EPA
regulates hazardous waste) placed an unwarranted stigma on coal
combustion residuals and threatened their beneficial re-use.
Furthermore, to regulate coal combustion residuals under
Subtitle C of RCRA, EPA would have to reverse the regulatory
determinations made under the Bevill Amendment.\1\ And it is
not clear that EPA could legally reverse the regulatory
determinations in that manner.
---------------------------------------------------------------------------
\1\In 1980, the ``Bevill Amendment'' precluded EPA from listing
coal ash (and other large volume, low toxicity wastes) as hazardous
waste until it had conducted a study and made a report to Congress
regarding the characteristics and management of these materials, to
determine whether regulation under subtitle C was warranted. In
regulatory determinations issued in 1993 and in 2000, pursuant to the
Bevill Amendment, EPA has found that subtitle C regulation of coal ash
is not warranted. In the 2000 regulatory determination EPA said that
federal regulation under subtitle D would be appropriate.
---------------------------------------------------------------------------
Concern also was raised regarding EPA's other proposals;
specifically, that the new regulations under Subtitle D of RCRA
would lead to the closure of structurally-sound surface
impoundments not posing a pollution risk, a significant loss of
jobs, and higher energy costs.
BENEFICIAL USE
Coal combustion residuals are a valuable constituent in a
variety of products and applications. The Proposed Rule and the
suggestion that coal combustion residuals be regulated as a
hazardous waste created significant uncertainty regarding
beneficial reuse of coal combustion residuals. Companies
engaged in the beneficial use of coal combustion residuals have
testified before the Committee that EPA's proposal to regulate
disposed CCRs as hazardous waste has created a stigma in the
beneficial use marketplace, causing contractors, engineers and
architects who use or specify the use of coal combustion
residuals in various products, such as concrete and wall board,
and in various applications, such as road base, to reduce their
demand for coal combustion residuals that are beneficially
used, and also causing utilities in some cases to restrict
their supply of coal combustion residuals for beneficial use.
H.R. 2218 makes clear that disposed coal combustion residuals
are not to be regulated as hazardous waste which should remove
the stigma that has been negatively impacting the beneficial
use marketplace. The Committee intends to promote the
environmental and economic benefits of a robust beneficial use
market because beneficial use conserves natural resources,
improves the durability and strength of manufactured products
and structures, reduces greenhouse gas emissions, lessens the
need for waste disposal units, and provides significant
domestic economic benefits.
LITIGATION
On April 5, 2012, several environmental groups filed a
lawsuit in the United States District Court for the District of
Columbia seeking to compel EPA to issue a final rule to
regulate coal combustion residuals. Several other stakeholders
have since joined the litigation including two companies that
beneficially reuse coal combustion residuals. The environmental
plaintiffs requested that the Court order EPA to complete the
rulemaking for coal combustion residuals within six months. EPA
notified the Court that because of the complexity of the rule
and because the Agency received almost 450,000 comments on the
Proposed Rule, the Agency needs more time than six months to
promulgate a legally defensible rule. It is the Committee's
expectation that H.R. 2218 would provide a legislative solution
and resolve the pending litigation.
BACKGROUND
H.R. 2218 is similar to H.R. 2273, which passed the House
during the 112th Congress on October 14, 2011, and was
introduced in the Senate as S. 1751 by Senators Hoeven and
Conrad. The text of H.R. 2273 was included as an amendment to
H.R. 4348, the ``Surface Transportation Extension Act of 2012,
Part II.'' Senators Hoeven and Baucus introduced a revised
version, S. 3512, on August 2, 2012. S. 3512 had 24 original
cosponsors, twelve Democrats and twelve Republicans. The text
of S. 3512 was included in H.R. 3409, which passed the House on
September 21 2012. The Subcommittee on Environment and the
Economy held a hearing on a Discussion Draft, the ``Coal Ash
Recycling and Oversight Act of 2013,'' which was the same text
as S. 3512. H.R. 2218 is the product of additional bi-partisan,
bi-cameral, and inter-branch discussions regarding the
management and disposal of coal combustion residuals.
Hearings
On April 11, 2013, the Subcommittee on Environment and the
Economy held a hearing on a ``Discussion Draft, the Coal Ash
Recycling and Oversight Act of 2013.'' The Subcommittee
received testimony from:
Mathy Stanislaus, Assistant Administrator of
the Office of Solid Waste and Emergency Response,
United States Environmental Protection Agency;
Robert J. Martineau, Jr., Commissioner,
Tennessee Department of Environment and Conservation;
Stephen A. Cobb, P.E., Chief, Governmental
Hazardous Waste Branch Land Division, Alabama
Department of Environmental Management;
Susan Parker Bodine, Partner, Barnes &
Thornburg LLP;
Lisa Evans, Senior Administrative Counsel,
Earthjustice; and,
Jack Spadaro, Mine Safety & Health and
Environmental Consultant.
Committee Consideration
On June 3, 2013, Representative David McKinley introduced
H.R. 2218, the ``Coal Residuals Reuse and Management Act of
2013.'' On June 5 and 6, 2013, the Subcommittee on Environment
and the Economy met in open markup session and by voice vote
forwarded the bill, without amendment, to the full Committee
for consideration. During the subcommittee markup no amendments
were offered.
On June 18 and 19, 2013, the full Committee on Energy and
Commerce met in open markup session and considered H.R. 2218.
During the markup, six amendments were offered and one, offered
by Mr. Shimkus, was adopted by voice vote. On June 19, 2013,
the Committee ordered H.R. 2218 favorably reported to the
House, as amended, by a record vote of 31 ayes and 16 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto. There were five record votes taken in connection with
ordering H.R. 2218 reported. A motion by the Chair to order
H.R. 2218 reported to the House, as amended, was agreed to by a
recorded vote of 31 ayes and 16 nays. The following reflects
the recorded votes taken during the Committee consideration:
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a legislative
hearing on April 11, 2013, and made findings that are reflected
in this report.
Statement of General Performance Goals and Objectives
The goal and objective of H.R. 2218 is to create a State-
based regulatory program for coal combustion residuals under
Subtitle D of the Solid Waste Disposal Act.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
2218, the ``Coal Ash Recycling and Oversight Act of 2013,''
would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
2218, the ``Coal Ash Recycling and Oversight Act of 2013,''
contains no earmarks, limited tax benefits, or limited tariff
benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
June 28, 2013.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2218, the Coal
Residuals Reuse and Management Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2218--Coal Residuals Reuse and Management Act of 2013
Summary: H.R. 2218 would provide for the management and
disposal of coal combustion residuals (CCR) under subtitle D of
the Solid Waste Disposal Act, also known as the Resource
Conservation and Recovery Act (RCRA). (CCR consists of
inorganic residues that remain after pulverized coal is
burned.) Consistent with subtitle D of RCRA, this legislation
would allow states to create and enforce their own CCR permit
programs while providing the Environmental Protection Agency
(EPA) with limited authority to review states' permit programs.
However, H.R. 2218 would enable EPA to directly regulate CCR in
states that fail to set up their own programs or in states
where the permit program is determined to be deficient and is
not subsequently remedied by the state.
CBO estimates that implementing this legislation would cost
$2 million over the 2014-2018 period, subject to the
availability of appropriated funds. Enacting H.R. 2218 would
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
H.R. 2218 would impose intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA) by expanding
an existing preemption of state laws that regulate greenhouse
gases from motor vehicles and by requiring states to notify EPA
whether they will adopt and implement a permit program for CCR.
The bill also would impose an intergovernmental and private-
sector mandate on owners and operators of structures that
receive CCR by establishing minimum federal requirements for
the management and disposal of CCR. Based on information from
EPA, a small number of public entities would be required to
comply with the federal standards, and CBO estimates that the
cost for those entities to comply would fall below UMRA's
annual threshold for intergovernmental mandates ($75 million in
2013, adjusted annually for inflation). However, given the
number of private-sector entities that would need to take
corrective action and the costs to comply, CBO estimates that
the cost of the mandates would probably exceed the annual
threshold established in UMRA for private-sector mandates ($150
million in 2013, adjusted annually for inflation).
Estimated cost to the Federal Government: CBO estimates
that implementing H.R. 2218 would cost EPA $2 million over the
next five years. The costs of this legislation fall within
budget function 300 (natural resources and environment).
Basis of estimate: For this estimate, CBO assumes that H.R.
2218 will be enacted by the beginning of fiscal year 2014 and
that the necessary amounts will be made available from
appropriated funds.
Certification of State CCR Permit Programs and CCR Permitting on Tribal
Lands
Based on information from EPA and other industry experts,
CBO expects that all states with coal-fired power plants (that
is, 45 states and Puerto Rico) would probably elect to operate
their own programs to manage disposal of the waste material.
Under this legislation, states would have six months after the
bill's enactment to notify EPA of their intentions to adopt and
implement their own CCR permit program; then, within three
years of the bill's enactment, the state agencies responsible
for implementing the permit programs would be required to
submit certifications of the state programs to EPA.
In addition, this legislation would require EPA to
implement a CCR permit program on tribal lands. Because this
legislation would not provide EPA with the authority to
substantially review certifications and because there are only
three coal-generating stations located on tribal lands that
would require permits, CBO estimates that EPA's workload for
this activity over the 2014-2018 period would not be
significant.
Based on information from EPA, CBO estimates that, over the
2014-2018 period, EPA would incur costs of about $200,000 to
$300,000 annually to support the initial certification process.
Review of existing State CCR Permit Programs
H.R. 2218 would provide EPA with the authority to evaluate
whether a state's CCR permit program is being implemented
consistent with the minimum program specifications established
under the bill. Consequently, EPA's costs to implement the
legislation could increase beginning in 2018--after state
programs are certified and operational--to the extent that EPA
would need to review certain state CCR permit programs for
deficiencies. According to EPA and other industry experts, such
reviews could be initiated by a petition for government action
from an environmental group or other interested parties.
While it is not likely that EPA would immediately review
the CCR permit programs for all states, some reviews of
programs in states with high coal consumption would probably be
initiated beginning in 2018. Based on information from EPA, CBO
estimates that reviewing a state program would cost, on
average, about $165,000 and would generally take less than one
year to complete. Thus, assuming that EPA would initiate
reviews of several state CCR permit programs beginning in 2018,
CBO estimates that work would cost $1 million to $2 million in
2016. (Additional reviews and EPA costs could occur after
2018.)
Pay-As-You-Go considerations: None.
Intergovernmental and private-sector impact: H.R. 2218
would impose intergovernmental mandates as defined in UMRA by
expanding an existing preemption of state laws that regulate
greenhouse gases from motor vehicles and by requiring states to
tell EPA whether they will adopt and implement a permit program
for CCR. Although the preemption would limit the application of
state law, CBO estimates that it would impose no duty on state
governments that would result in additional spending. CBO
estimates that the cost, if any, of the notification
requirement would be small. If states chose to adopt and
implement a CCR program, any costs they incurred would result
from participation in a voluntary federal program and not from
the requirements of an intergovernmental mandate.
By establishing minimum federal requirements for the
management and disposal of CCR, the bill would impose an
intergovernmental and private-sector mandate on owners and
operators of structures that receive CCR. Based on information
from EPA, a small number of public entities would be required
to comply with the federal standards, and CBO estimates that
the cost for those entities to comply would fall below UMRA's
annual threshold for intergovernmental mandates ($75 million in
2013, adjusted annually for inflation).
The cost of the mandate on the private sector would depend
on the number of entities that would need to take corrective
action. Based on information from EPA and industry sources, CBO
estimates that those costs would amount to $150 million or more
annually. Consequently, the cost of the mandates would probably
exceed the annual threshold established in UMRA for private-
sector mandates ($150 million in 2013, adjusted annually for
inflation).
Estimate prepared by: Federal Costs: Susanne S. Mehlman and
Susan Willie; Impact on State, Local, and Tribal Governments:
Melissa Merrell; Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 2218 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 2218 does not
specifically direct to be completed specific rule making within
the meaning of 5 U.S.C. 551.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title and table of contents
This section provides the short title of ``Coal Residuals
Reuse and Management Act of 2013'' and identifies the sections
of the bill as follows: Section 1, Short Title and Table of
Contents; Section 2, Management and Disposal of Coal Combustion
Residuals; Section 3, 2000 Regulatory Determination; Section 4,
Technical Assistance, and Section 5, Federal Power Act.
Section 2. Management and disposal of coal combustion residuals
Section 2 amends Subtitle D of the Solid Waste Disposal Act
(42 U.S.C. 6941 et seq.) by adding a new section, section 4011,
Management and Disposal of Coal Combustion Residuals.
Subsection (a) of new section 4011 permits States to choose
whether to adopt and implement a coal combustion residuals
(CCRs) permit program. It is the intent of the Committee that
such a permit program be adopted and implemented in every State
that generates, stores, disposes of, or uses CCRs. The
Committee believes that States are best situated to create a
permit program, and the Committee intends to provide States
flexibility regarding their individual permit programs while
ensuring that States have the necessary authorities and
procedures, including staffing and technical capabilities, to
allow them to implement a permit program that meets the minimum
requirements set out in this bill.
Subsection (b) of new section 4011 sets out certain
requirements a State must comply with to adopt and implement a
permit program. Paragraph (b)(1) requires a State that intends
to adopt and implement a coal combustion residuals permit
program to notify the Administrator of the EPA that it intends
to do so within six months of enactment.
Paragraph (b)(2) of new section 4011 requires States that
intend to adopt and implement a permit program to certify to
EPA, within 36 months of enactment, that the permit program
meets the specifications set out in this section. The
certification must identify the lead State agency responsible
for implementing the permit program and any other State
agencies involved. The certification also must contain a
narrative explanation of how the State permit program will meet
the specifications, a description of the State's process to
inspect and enforce the permit program, the public
participation process for promulgation of regulations and
issuance of permits, and a description of the State statutes,
regulations, or policies regarding: public access to
information and structural integrity or dam safety. Paragraph
(b)(2) further requires that each State that intends to
implement a permit program provide a legal certification that
it has fully effective statutes or regulations necessary to
carry out the permit program. The Committee expects that States
will have the appropriate statutes or regulations in effect at
the time of the certification and will provide copies of the
statutes and regulations to the Administrator. The Committee
intends that States will promulgate statutes and regulations
necessary to implement a coal combustion residuals permit
program. The Committee acknowledges that a State may need to
update the certification as necessary to reflect changes to the
permit program. The Committee also acknowledges that,
consistent with the State Implementation Rule for the Part 258
municipal solid waste landfill permit program (40 CFR Part
239), a legal certification may be signed by either the State
Attorney General or independent legal counsel designated by the
State.
Paragraph (b)(3) of new section 4011 provides that, in
order to adopt or implement a permit program, the State must
maintain an approved program for municipal solid waste under
section 4005(c) or an authorized hazardous waste program under
section 3006 of the Solid Waste Disposal Act. It is the view of
the Committee that States with an approved program under
section 4005(c) or an authorized program under section 3006 of
the Solid Waste Disposal Act already have adequately
demonstrated to the Administrator that they are capable of
administering such permit programs and that EPA approval prior
to the start of implementation is not necessary. Upon
submission of its certification, the Committee intends that a
State immediately may commence or continue the implementation
of a permit program. States that already are implementing a
permit program may continue to operate the program while the
State completes the certification process.
Subsection (c) of new section 4011 lays out the
requirements for a coal combustion residuals permit program.
The Committee intends that the requirements in subsection (c)
are minimum national criteria to ensure protection of human
health and the environment, and they comprise a Federal
standard of protection for the regulation of coal combustion
residuals. The Committee believes that permit programs that
incorporate the minimum requirements in the bill will be
protective of human health and the environment. Paragraph
(c)(1) describes the specifications for a permit program as
follows.
Paragraph (c)(1) of new section 4011 requires that specific
provisions of the revised criteria set out in paragraph (c)(2)
be applied to owners or operators of structures, including
surface impoundments, that receive coal combustion residuals.
Paragraph (c)(1) also requires that structures that receive
coal combustion residuals as of the date of enactment take
actions required under paragraph (c)(3), imposes requirements
for surface impoundments that do not meet the criteria in
paragraph (c)(4), and requires that closure of structures occur
in accordance with paragraph (c)(5).
Subparagraph (c)(1)(B) of new section 4011 requires
structural stability assessments for all structures used for
the storage and disposal of coal combustion residuals. This
subparagraph requires that permit programs have an independent,
registered, professional engineer certify that the design of
each structure is in accordance with recognized and generally
accepted good engineering practices for containment of the
maximum volume of coal combustion residuals and liquids that
can be impounded therein. An independent, registered,
professional engineer also must certify that the construction
and maintenance will ensure structural stability.
The Committee intends that ``recognized and generally
accepted good engineering practices'' be defined in the same
manner as EPA defined the term in the Proposed Rule as
``engineering, operation, or maintenance activities based on
established codes, standards, published technical reports or
recommended practices or a similar document.'' EPA further
explained that ``recognized and generally accepted good
engineering practices detail generally approved ways to perform
specific engineering, inspection or mechanical integrity
activities.'' The Committee intends that the term
``independent'' also has the meaning attributed to it by EPA in
the Proposed Rule and means a registered professional engineer
who is not an employee of the owner or operator of a structure.
This subparagraph requires that the construction and
maintenance of structures ensure dam stability and requires
that the owner or operator of a structure prepare an emergency
action plan for a structure that is classified by the
implementing agency as ``high hazard'' pursuant to the
guidelines published by the Federal Emergency Management Agency
(FEMA). This subparagraph also requires that surface
impoundments that receive CCRs after enactment be inspected at
least annually by an independent registered professional
engineer to ensure that they remain able to contain the maximum
volume of coal combustion residuals and liquids, and be
evaluated periodically for appearances of structural weakness.
This subparagraph also provides authority to require that
action be taken to remedy identified deficiencies and
authorizes the implementing agency to require closure if
deficiencies are not corrected. The Committee acknowledges that
most States have dam safety personnel with expertise in making
determinations regarding the structural deficiency of a surface
impoundment. Therefore, this subparagraph requires that the
implementing agency consult with State dam safety officials
when making a determination under this subparagraph.
Subparagraph (c)(1)(C) of new section 4011 provides that
new structures that first receive coal combustion residuals
after the date of enactment must be constructed with a minimum
base of 2 feet above the upper limit of the water table unless
it is demonstrated to the satisfaction of the agency
implementing a permit program that the hydrogeologic
characteristics of the structure preclude the requirement and
that the liner system will not be impacted by contact with the
water table.
Subparagraph (D) of paragraph (c)(1) of new section 4011
provides that a permit program address wind dispersal of dust
by requiring cover or wetting of coal combustion residuals to a
moisture content that prevents wind dispersal and facilitates
compaction, but does not result in free liquids. The owner or
operator of a structure may suggest alternative methods to
address wind dispersal, but the agency implementing a permit
program must review and approve the alternate method.
Subparagraph (E) of paragraph (c)(1) of new section 4011
requires the agency responsible for implementing a permit
program to require the owner or operator of any structure that
receives CCRs after enactment to apply for and obtain a permit
that incorporates the requirements set out in subsection (c).
Subparagraph (F) of paragraph (c)(1) of new section 4011
requires that, with the exception of information that is
protected under section 1905 of Title 18, United States Code,
documents for permit determinations be made available for
public review and comment pursuant to the State's public notice
and comment process described in the certification under
subparagraph (b)(2)(B). This subparagraph also requires that
final determinations on permit applications and groundwater
monitoring data be made publicly available.
Subparagraph (G) of paragraph (c)(1) of new section 4011
provides the agency implementing a permit program with
authority to obtain information and to conduct monitoring and
testing to make sure that structures are in compliance with the
requirements of subsection (c). This subparagraph also provides
the implementing agency authority to enter, at reasonable
times, any site or premise subject to a permit program to
review records relevant to the operation and maintenance of
structures or to inspect structures. This subparagraph provides
that an agency implementing a permit program that conducts
monitoring or testing, must (if requested) provide to the owner
or operator a written description of the monitoring or testing
completed and at the time of sampling, provide a portion of
each sample equal in volume or weight to that retained by or
for the agency, and the results of sample analysis.
Paragraph (c)(2) of new section 4011 specifies a subset of
the criteria set out in Title 40, Part 258 of the Code of
Federal Regulations that are required to be part of a coal
combustion residuals permit program. Part 258 was promulgated
by EPA pursuant to direction from Congress (in sections 4010(c)
and 4004(a) of RCRA) that the criteria be necessary ``to
protect human health and the environment.'' Further, EPA stated
in the Proposed Rule as follows:
[I]n developing the proposed RCRA subtitle D option
for CCRs, EPA considered a number of existing
requirements as relevant models for minimum national
standards for the safe disposal of CCRs. The primary
source was the existing requirements under 40 CFR part
258, applicable to municipal solid waste landfills,
which provide a comprehensive framework for all aspects
of disposal in land-based units, such as CCR landfills.
Based on the Agency's substantial experience with these
requirements, EPA believes that the part 258 criteria
represent a reasonable balance between ensuring the
protection of human health and the environment from the
risks of these wastes and the practical realities of
facilities' ability to implement the criteria.
The Committee believes that by incorporating the revised
criteria in Part 258--which were promulgated by EPA as those
necessary to protect human health and the environment--the
minimum requirements set out in H.R. 2218 fully protect human
health and the environment.
Subparagraph (A) of paragraph (c)(2) of new section 4011
specifically includes the revised criteria from 40 CFR Part 258
regarding design requirements. A permit program must include
design criteria in 40 CFR 258.40 for new structures and lateral
expansions of structures that begin receiving coal combustion
residuals after the date of enactment, except that the leachate
collection system requirements in section 258.40(a)(2) do not
apply to structures that are surface impoundments.
Subparagraph (B) of paragraph (c)(2) of new section 4011
requires that all structures that receive coal combustion
residuals on or after the date of enactment have groundwater
monitoring as described in 40 CFR 258 subpart E. This
subparagraph also incorporates additional groundwater
monitoring constituents specific to coal combustion residuals.
Specifically included in the minimum requirements for detection
monitoring are: boron, chloride, conductivity, fluoride,
mercury, pH, sulfate, and total dissolved solids. For
assessment monitoring establishing a groundwater protection
standard, and assessment of corrective measures, the minimum
requirements include: aluminum, boron, chloride, fluoride,
iron, manganese, molybdenum, pH, sulfate, and total dissolved
solids.
Subparagraph (C) of paragraph (c)(2) of new section 4011
specifies the applicable requirements in 40 CFR 258.60 for
closure. The Committee recognizes that certain requirements in
40 CFR 258.60 are not applicable and therefore, are excluded.
Subparagraph (D) of paragraph (c)(2) of new section 4011
requires a permit program to include the requirements in 40 CFR
258.61 for post-closure care.
Subparagraph (E) of paragraph (c)(2) of new section 4011
requires a permit program to have location restrictions
appropriate to the type of structure. The Committee recognizes
that new structures and lateral expansions of existing
structures require different siting restrictions from those
applicable for existing structures. New structures and lateral
expansions of existing structures that begin receiving coal
combustion residuals after the date of enactment must comply
with the location restrictions in 40 CFR 258.11 through 258.15.
Permitting of existing structures need only include the
location restrictions in 40 CFR 258.11 and 258.15.
Subparagraph (F) of paragraph (c)(2) of new section 4011
requires a permit program to include the requirements in 40 CFR
Part 258.24. The Committee considers the applicable Clean Air
Act provisions and individual State fugitive dust requirements
adequate to address any potential dust issues with coal
combustion residuals structures, but this Title requires that
structures that receive coal combustion residuals after
enactment also comply with the revised criteria for air quality
described in section 40 CFR 258.24.
Subparagraph (G) of paragraph (c)(2) of new section 4011
requires a permit program to include the financial assurance
requirements in 40 CFR 258 subpart G.
Subparagraph (H) of paragraph (c)(2) of new section 4011
requires a permit program to include the surface water
requirements in section 40 CFR 258.27.
Subparagraph (I) of paragraph (c)(2) of new section 4011
requires a permit program to include the recordkeeping
requirements in section 40 CFR 258.29.
Subparagraph (J) of paragraph (c)(2) of new section 4011
requires a permit program to apply the revised criteria for
run-on and run-off control systems described in 40 CFR 258.26
to landfills and other land-based units, other than surface
impoundments, that receive coal combustion residuals after the
date of enactment.
Subparagraph (K) of paragraph (c)(2) of new section 4011
requires a permit program to apply only the revised criteria
for run-off control systems described in 40 CFR 258.26(a)(2) to
surface impoundments that receive coal combustion residuals
after the date of enactment.
Paragraph (c)(3) of new section 4011 sets a schedule for
permit program implementation for structures that receive CCR
on or after the date of enactment. Not later than when a State
submits its permit program certification to the Administrator,
30 months after a State notifies the Administrator of EPA that
it does not intend to develop a CCR permit program, or 36
months after the date of enactment when the Administrator is
implementing a permit program under subsection (e)(3), the
implementing agency must notify owners of structures receiving
CCRs, as of the date of enactment, of the obligation to obtain
a permit and of the requirements (in subparagraph (c)(3)(B))
that the owners or operators will be required to comply with
during the period of interim operation. The Committee intends
that not later than 3 years after the date of enactment, all
owners or operators of structures will be notified of the
applicable coal combustion residual permit program
requirements.
Subparagraph (c)(3)(B) of new section 4011 establishes a
schedule by which owners or operators of structures that are
receiving CCRs as of the date of enactment must comply with
certain requirements from subsections (c)(1) and (c)(2); in
particular, the (c)(1) requirements regarding creation of an
emergency action plan, annual inspection regarding the design,
construction, and maintenance of surface impoundments, and the
(c)(2) requirements for groundwater monitoring and corrective
action, air quality, surface water, run-on and run-off for
land-based units, run-off for surface impoundments, and
specific groundwater record keeping requirements. Compliance
with these requirements must begin no later than 12 months
after a State submits its certification, 42 months after the
Administrator receives notice that a State will not operate its
own permit program, or 48 months after enactment for a program
to be implemented by the Administrator under (e)(3). The
Committee intends that no later than 4 years after the date of
enactment, owners or operators of structures will comply with
the specified requirements.
Subparagraph (c)(3)(C) of new section 4011 provides that
the implementing agency must issue a permit or deny an
application within 48 months after the State submits its
certification, 78 months after the Administrator receives
notice from a State that it does not intend to operate its own
permit program, or 84 months after enactment for programs
implemented by the Administrator. The implementing agency must
collaborate with the structure's owner or operator to identify
a deadline by which a permit application must be submitted. The
Committee intends that permits will be issued within seven
years from the date of enactment.
Subparagraph (c)(3)(D) of new section 4011 provides that
structures receiving CCRs on or after the date of enactment may
continue to operate under existing authority between the date
of enactment and the deadlines by which they must comply with
the requirements in Subparagraph (c)(3)(B). After the
applicable deadlines and before receiving a permit that meets
the minimum requirements, a structure in compliance with the
requirements in subparagraph (c)(3)(B) may continue to operate
unless it is required by the implementing agency to close under
Paragraph (5). The purpose of this provision is to ensure that
owners or operators may continue to operate from the date of
enactment through the interim period of operation and to ensure
that owners and operators that are in compliance with the
requirements in subparagraph (c)(3)(B) may continue to operate
even in the absence of a permit until such time as the
implementing agency issues a final permit that incorporates the
minimum requirements for a coal combustion residuals permit
program or issues a permit denial.
Paragraph (c)(4) of new section 4011 applies, in addition
to the groundwater monitoring and corrective action
requirements in (c)(2)(B), to surface impoundments that do not
have a liner system described in 40 CFR 258.40(b) and that do
not meet the design criteria described in 40 CFR 258.40(a)(1).
Subparagraph (c)(4)(A) of new section 4011 provides that
surface impoundments that, within 10 years of the date of
enactment, are required to undergo an assessment of corrective
measures for any constituent identified in paragraph (2)(B) for
which assessment groundwater monitoring is required, must meet
the groundwater protection standard established by the agency
implementing the permit program at the relevant point of
compliance as soon as practicable, but not later than 10 years
from the date of enactment.
Subparagraph (c)(4)(B) of new section 4011 provides that
surface impoundments that are subject to a State corrective
action requirement as of the date of enactment, must meet the
groundwater protection standard established by the agency
implementing the permit program at the relevant point of
compliance as soon as practicable, but not later than 8 years
from the date of enactment.
Subparagraph (c)(4)(C) of new section 4011 provides that
the deadlines for meeting the groundwater protection standard
in subparagraphs (B) and (C) may be extended by the agency
responsible for implementing the coal combustion residuals
permit program, after opportunity for public notice and
comment, based on the following factors: (1) consideration of
the effectiveness of any interim measures implemented by the
owner or operator of the facility under section 258.58(a)(3) of
title 40, Code of Federal Regulations; (2) the level of
progress demonstrated in meeting the groundwater protection
standard; (3) the potential for other adverse human health or
environmental exposures attributable to the contamination from
the surface impoundment undergoing corrective action; and (4)
the lack of available alternative management capacity for the
coal combustion residuals and related materials managed in the
impoundment at the facility at which the impoundment is located
if the owner or operator has used best efforts, as necessary,
to design, obtain any necessary permits, finance, construct,
and render operational the alternative management capacity
during the time period for meeting the groundwater protection
standard. The deadlines may not be extended if there has been
contamination of public or private drinking water systems
attributable to a surface impoundment undergoing corrective
action, unless the contamination has been addressed by
providing a permanent replacement water system.
Subparagraph (c)(4)(D) of new section 4011 provides that if
the impoundments identified in (c)(4)(A) and (c)(4)(B) do not
meet the groundwater protection standard, they must cease
receiving coal combustion residuals and initiate closure
pursuant to subparagraph (c)(5). This subparagraph also
provides that, within 90 days of the date an assessment of
corrective measures is initiated, the owner or operator of a
surface impoundment must implement interim measures, as
necessary, under the factors in 40 CFR 58.58(a)(3). For surface
impoundments subject to a State corrective action requirement
on the date of enactment, the owner or operator must implement
interim measures, as necessary, if interim measures have not
been previously implemented.
Subparagraph (c)(4)(E) of new section 4011 provides that
surface impoundments that more than 10 years after date of
enactment are required to undergo an assessment of corrective
measures, shall cease receiving coal combustion residuals and
initiate closure under subparagraph (c)(5) after alternative
management capacity for the coal combustion residuals and
related materials managed in the impoundment at the facility is
available. The alternative management capacity is required to
be developed as soon as practicable with the owner or operator
using best efforts, to design, obtain necessary permits,
finance, construct, and render operational the alternative
management capacity. The owner or operator must, in
collaboration with the agency responsible for implementing the
coal combustion residuals permit program, prepare a written
plan, subject to public notice and comment, which describes the
steps necessary to develop the alternative management capacity
and includes a schedule for completion.
Paragraph (c)(5) of new section 4011 provides that if an
implementing agency, or the structure's owner or operator,
determines that a structure should close, the time period and
method for closure must be set forth in a closure plan. The
deadline set out in the plan for completing closure must be as
soon as practicable taking into account site-specific
characteristics. The closure plan for surface impoundments must
include removal of liquid and stabilization of remaining waste,
as necessary to support the final cover. The Committee intends
that closure of structures involve a range of site-specific
factors and that the closure timeframes applicable to municipal
solid waste landfills under 40 CFR, Part 258 not apply to CCRs.
For that reason these time frames were excluded from the
revised criteria in subsection (c)(2). For example, municipal
solid waste landfill closure requirements in Part 258 allow 180
days for closure, but the closure of surface impoundments
containing coal combustion residuals may take significantly
longer because dewatering and draining the liquid must be done
gradually. This subsection ensures that if a permitting
authority determines that a coal combustion waste structure
must close, closure requirements take into account site-
specific factors and the closure plan takes into account the
time needed to address the issue of alternate disposal capacity
to replace the closed structure. The Committee also understands
that coal combustion residual impoundments often serve a
wastewater management function by receiving and handling water
from other power plant processes, including storm water run-
off. The Committee anticipates that a closure plan, issued
pursuant to this paragraph, would recognize this ancillary
function and provide a reasonable time for alternative
wastewater treatment facilities to be permitted and
constructed.
Subsection (d) of new section 4011 provides for Federal
review of State permit programs and requires the Administrator
to provide written notice to a State that fails to take certain
actions and allows a State that receives written notice from
the Administrator an opportunity to remedy any deficiency
identified. The Administrator's notice requirement is triggered
if a State fails to: (A) notify the Administrator regarding
whether it intends to adopt and implement a permit program
within six months of the date of enactment; (B) submit a
certification that its permit program meets the minimum
specifications within 36 months of the date of enactment; (C)
maintain either an approved Municipal Solid Waste permit
program under section 4005(c) of the Solid Waste Disposal Act
or a hazardous waste permit program under section 3006 of the
Solid Waste Disposal Act; (D) implement a permit program that
meets the specifications in (c); (E) implement a permit program
that is consistent with the certification under (b)(2) and for
which the State continues to have in effect the statutes or
regulations necessary to implement such permit program; or (F)
if a State fails, upon written request from the Administrator,
to make available information regarding whether the State has
complied with the requirements in subparagraphs (A) through
(E). The information must be made available within 90 days of
the Administrator's written request. The information request
may be made only if the Administrator does not possess the
information requested at the time of the request.
Paragraph (d)(3) of new section 4011 details the contents
of a written notice provided by the Administrator to a State
that fails to take actions identified in paragraph (d)(1). The
Committee intends that the Administrator include in the written
notice the Agency's findings regarding whether a State failed
to comply with the requirements in subparagraphs (A) through
(F). This paragraph also requires the Administrator to
collaborate with a State that receives a written notice to set
a reasonable deadline for the State to remedy any deficiencies
identified by the Administrator in the notice. The deadline may
not be sooner than six months from the date the State receives
the written notice except for a deficiency under subparagraph
(F) for which the deadline may not be later than 90 days.
Paragraph (d)(4) of new section 4011 sets out deficiency
criteria with which the Administrator can determine if a State
permit does not meet the requirements of paragraphs (A) through
(E) of paragraph (d)(1), or to implement a program for a State
under subsection (e). These criteria include whether a State's
statutes or regulations are not sufficient to meet the minimum
requirements in subsection (c); whether a State has failed to
promulgate or enact necessary new statutes or regulations;
whether actions by a State legislature or court limit such
State statutes or regulations; whether a State permit program
fails to issue permits required in (c)(1) or repeatedly issues
permits that do not meet the requirements in subsection (c);
whether a State fails to comply with public participation
requirements of this section; whether a State fails to
implement corrective action requirements; or whether
enforcement of a State permit does not comply with new section
4011 because of failure to act on violations or failure to
inspect. The Committee believes that the specific objective
criteria listed in subparagraph (d)(4) provide the necessary
parameters for EPA to determine whether a State permit program
is deficient.
Subsection (e) of new section 4011 provides that the
Administrator must implement and administer a permit program
for a State only if: (1) the Governor of a State notifies the
Administrator that the State will not adopt and implement its
own permit program; (2) the State receives a notice of
deficiency under subsection (d) and, after completion of public
notice and comment, fails to remedy the deficiency by the date
agreed upon by the State and the Administrator; or (3) a State
informs the Administrator that such State no longer wishes to
implement a permit program. A State may obtain review of this
determination by the Administrator as if the determination was
a final regulation under section 7006 of the Solid Waste
Disposal Act. The Committee intends that the Administrator's
authority under subsection (d) to assess--at any time--whether
a State permit program is deficient, combined with the
authority of the Administrator under subsection (e) to assume
implementation of a deficient permit program, provides a legal
backstop for State permit programs.
Paragraph (e)(3) provides that the Administrator must
implement a permit program for structures that receive CCRs
after enactment and that are within exterior boundaries of a
State that a State does not have authority to regulate. The
Committee intends that this provision only allow the
Administrator to regulate structures on property governed by an
Indian tribe.
Subsection (e) further requires that in circumstances where
the Administrator implements a permit program for a State under
subsection (e), such a permit program be confined to the
program specifications set forth in subsection (c) and
specifically does not authorize a program implemented by the
Administrator to include requirements not specifically
identified in subsection (c).
Paragraph (e)(5) provides that when implementing a permit
program under subsection (e), the Administrator may inspect,
gather information, and enforce requirements of this Act using
the inspection and enforcement authorities referred to in
4005(c)(2)(A) of the Solid Waste Disposal Act, which references
sections 3007 and 3008 of the Solid Waste Disposal Act. Absent
an imminent hazard addressed by EPA under section 7003 of the
Solid Waste Disposal Act, nothing in new section 4011 grants
EPA inspection and enforcement authority in States whose permit
programs have not been assumed by the Administrator pursuant to
the provisions of subsection (e).
Paragraph (e)(6) provides that if implementing a CCR permit
program for a State under subsection (e), the Administrator
must provide a 30 day period for public participation for
granting an extension under subparagraph (c)(4)(C)(i) and when
developing a plan under (c)(4)(E)(ii)(IV).
Subsection (f) of new section 4011 sets out the procedural
requirements States must follow to regain control of their
permit program. Subparagraph (1)(A) provides that if EPA is
implementing a permit program because the State notified the
Administrator that it had chosen not to do so, a State may
resume control of its permit program by notifying the
Administrator that it will adopt and implement a permit
program. Within six months of notification, the State must
certify to EPA, pursuant to the requirements provided in
subsection (b)(2), that its program meets the minimum
specifications for a permit program. Before a State may resume
authority for implementation, it must receive from the
Administrator 1) a determination, after notice and a 30 day
period for public comment, that the State's permit program
meets the minimum program specifications described in
subsection (c) and 2) a timeline for transition of control of
the permit program from the Administrator to the State agency
responsible for implementing the State's permit program.
Subparagraph (f)(1)(B) provides that, if the Administrator
is implementing a permit program because a State failed to
remedy an identified deficiency, a State may take back control
of its permit program by (1) correcting only the deficiencies
identified by the Administrator in the initial notice under
subsection (d) and (2) receiving a determination from the
Administrator, after notice and a 30 day period for public
comment, that the State has adequately remedied any
deficiencies in the permit program and a timeline for
transition of control of the permit program from the
Administrator to the State official responsible for operating
the State's permit program.
Subparagraph (f)(2)(A) provides that if a State begins the
process of taking control of a permit program from the
Administrator by submitting a certification, or notifies the
Administrator that it has corrected any identified deficiencies
with its permit program, the Administrator, within 90 days of
the date on which a State initiates the process of taking back
its permit program, is required to make a determination as to
whether the State has met applicable statutory criteria.
Subparagraph (f)(2)(B) allows a State to obtain a review of
the Administrator's determination of whether a State may take
over implementation of its permit program as if such
determination was a final regulation subject to judicial review
under section 7006 of the Solid Waste Disposal Act.
Paragraph (f)(3) provides that during the transition of
control of a permit program between a State and the
Administrator, actions taken and orders issued remain in
effect. This provision was included to prevent a gap in
regulation. Control would remain with the entity transferring
the permit program until the entity assuming the program is
able to fully implement the permit program. Subparagraphs (A)
and (B) require existing actions, orders, or permits issued
pursuant to a permit program to remain in effect until the
entity assuming control of the permit program (1) changes the
requirements of the permit program with respect to the basis
for the action or order or (2) certifies the completion of a
corrective action that is the subject of the action or order.
Paragraph (f)(4) requires that there be only one permit
program pursuant to new section 4011 in each State at any given
time and requires that if a State regains control of a permit
program from the Administrator, the Administrator cease to
implement its permit program.
Subsection (g) prohibits the Administrator from considering
the implementation of a permit program in making a
determination under section 4005(c) or 3006 of this title. The
Committee intends that if the Administrator is implementing a
permit program under subsection (e) of new section 4011 in a
State, the Administrator may not use that fact against a State
in approving or withdrawing approval for a Municipal Solid
Waste permit program under section 4005(c) of the Solid Waste
Disposal Act or issuing or withdrawing authorization under
section 3006 of the Solid Waste Disposal Act for a hazardous
waste program.
Paragraph (h)(1) provides that nothing in new section 4011
of the Solid Waste Disposal Act precludes or denies any right
of any State to adopt or enforce any regulation or requirement,
respecting coal combustion residuals, that is more stringent or
broader in scope than a regulation or requirement required
under new section 4011 of the Solid Waste Disposal Act. This
provision is consistent with other subtitles of the Solid Waste
Disposal Act that allow States to be more stringent than the
Federal baseline established by this legislation.
Paragraph (h)(2) requires that, with respect to the
regulation of coal combustion residuals, the Administrator
defer regulation to the States unless the Administrator makes a
deficiency finding under subsection (d), is regulating coal
combustion residuals in a State pursuant to a program
authorized under subsection (e), or as part of the
Administrator's authorities regarding Federally funded projects
involving procurement of cement or concrete under section 6005
of the Solid Waste Disposal Act. The Committee understands that
a blanket prohibition on the authority of the Administrator to
regulate coal combustion residuals under any subtitle of the
Solid Waste Disposal Act could have unintended consequences
where State laws preclude a State from regulating more
stringently than the Administrator. Paragraph (h)(2) also
precludes the Administrator from promulgating additional
regulations specifically for the regulation of coal combustion
residuals.
Subparagraph (h)(2)(B) is a savings clause to clarify that
nothing in the Coal Residuals Reuse and Management Act of 2013
affects the authority of the Administrator under section 7003
of the Solid Waste Disposal Act to address imminent and
substantial endangerments to health or the environment with
respect to the disposal of coal combustion residuals.
Subparagraph (h)(2)(C) allows the Administrator to provide
enforcement assistance when requested by a State, but only the
specific assistance requested by the State.
Subparagraph (h)(2)(D) provides that, unless a State
requests enforcement assistance, if a State is implementing a
permit program, the Administrator would have no concurrent
enforcement authority including during the period of interim
operation described in subsection (c)(3)(D).
Subparagraph (h)(2)(E) precludes the Administrator from
finalizing the proposed rule published at pages 35138 through
35263 of volume 75 of the Federal Register.
Subparagraph (h)(2)(F) is a savings clause to clarify that
nothing in the Coal Residuals Reuse and Management Act of 2013
affects the authority of the Administrator under the
Comprehensive Environmental Response, Compensation, Liability
Act of 1980 (42 U.S.C. 9601 et seq.).
Paragraph (h)(3) is a savings clause clarifying that this
legislation does not affect the authority of a person to
commence an action under section 7002 of the Solid Waste
Disposal Act.
Subsection (i) provides that a permit program implemented
by the Administrator under subsection (e) not apply to the
utilization, placement, and storage of coal combustion
residuals at surface mining and reclamation operations. The
Department of the Interior, Office of Surface Mining
Reclamation and Enforcement under the Surface Mining Control
and Reclamation Act (SMCRA) (30 U.S.C. 1234 et seq.) governs
the utilization, placement, and storage of coal combustion
residuals at surface mining and reclamation operations. In
addition, several States utilize their solid waste laws and
regulations to govern the utilization, placement, and storage
of coal combustion residuals at surface mining and reclamation
operations, and this Title does not affect such State
authorities.
Subsection (j) includes the following definitions:
``Coal combustion residuals'' includes those solid
wastes identified in Section 3001(b)(3)(A)(i) of the Solid
Waste Disposal Act, including recoverable materials from such
wastes. Section 3001(b)(3)(A)(I) defines these wastes to be fly
ash waste, bottom ash waste, slag waste, and flue gas emissions
control waste generated primarily from the combustion of coal
or other fossil fuels. The Committee intends that permit
programs created pursuant to new section 4011 regulate ash
waste generated primarily from the combustion of coal. ``Coal
combustion residuals'' also includes other non-hazardous
wastes: (1) coal combustion waste when co-managed with certain
other wastes produced in conjunction with the combustion of
coal, provided that such wastes are not segregated and disposed
of separately from the coal combustion wastes and comprise a
relatively small proportion of the total wastes being disposed
of in the structure; (2) fluidized bed combustion wastes; (3)
wastes from co-burning coal with non-hazardous secondary
materials provided that coal makes up at least 50% of the total
fuel burned; and (4) wastes that are recovered from monofills,
which consist of wastes from co-burning coal with fly ash
waste, bottom ash waste, slag waste, and flue gas emissions
control waste generated primarily from the combustion of coal
or other fossil fuels.
``Coal combustion residuals permit program'' means
all of the authorities, activities, and procedures that
comprise the system of prior approval and conditions
implemented by or for a State to regulate the management and
disposal of coal combustion residuals or, as conditioned in
this Title, by the Administrator for a State.
``Code of Federal Regulations'' means the Code of
Federal Regulations (as in effect on the date of enactment of
this section) or any successor regulations.
``Implementing agency'' means the lead State
implementing agency in clause (b)(2)(B)(i) or the Administrator
acting pursuant to subsection (e).
``Permit; prior approval and conditions'' means
any authorization, license, or equivalent control document that
incorporates the requirements and revised criteria in
subsection (c).
``Revised Criteria'' means the criteria
promulgated for municipal solid waste landfill units under
section 4004(a) and under section 1008(a)(3), as revised under
section 4010(c). The ``revised criteria'' that serve as the
baseline for permit programs consist of criteria that the
Administrator promulgated pursuant to sections 1008(a)(3),
4004(a), and 4010(c) of the Solid Waste Disposal Act. These
applicable provisions require that the Agency's promulgated
regulations provide:
``. . . for the protection of public health and the
environment. . . .'' [1008(a)];
``. . . no reasonable probability of adverse
effects on health or the environment'' [4004(a)]; and
``the criteria . . . necessary to protect human
health and the environment. . . .'' [4010(c)].
Accordingly, the Committee expects that the Federal
standard of protection, which is comprised of the
minimum requirements in this legislation, will protect
human health and the environment without promulgation
of new Federal regulations for coal combustion
residuals. As the Environmental Protection Agency
acknowledged in its Proposed Rule, the ``part 258
criteria represent a reasonable balance between
ensuring the protection of human health and the
environment from the risks of these wastes and the
practical realities of facilities' ability to implement
the criteria.''
Finally, while the legislation does not preclude EPA
from revising the criteria in Part 258, such future
revisions to Part 258 would apply to the entire
municipal solid waste landfill program.
``Structure'' includes landfills, surface
impoundments, or other land-based units which may receive coal
combustion residuals. While the Committee is aware that 40 CFR
Part 258 was promulgated to regulate municipal solid waste
landfills, the Committee intends this legislation to govern all
land-based disposal units for coal combustion residuals and
believes that the requirements in 40 CFR Part 258 are adaptable
and appropriate for disposal of coal combustion residuals in
structures other than solid waste landfills. The Committee
believes that this legislation leaves no gaps between the
requirements of 40 CFR Part 258 and what is required to
regulate land-based disposal units other than solid waste
landfills.
``Structure'' does not include any land-based unit that
receives only de minimis quantities of coal combustion
residuals if the presence of coal combustion residuals is
incidental to the material managed in the unit. Nor does the
Committee intend ``structure'' to include land-based units at
coal-fired electric power plants--such as cooling water,
polishing, or storm water ponds--which receive small or
incidental amounts of, and are not intended to serve as
disposal structures for, coal combustion residuals. The
Committee also does not intend that the term ``other land-based
unit'' include temporary piles or other inventories of coal
combustion residuals stored by manufacturers for purposes of
recycling or beneficial re-use.
Section 3. 2000 Regulatory determination
This section provides that nothing in this Title be
construed to alter EPA's regulatory determination entitled
``Notice of Regulatory Determination on Wastes from the
Combustion of Fossil Fuels,'' published at 65 Fed. Reg. 32214
(May 22, 2000).
Section 4. Technical assistance
This section provides that nothing in this Title be
construed to affect the authority of a State to request, or the
Administrator to provide, technical assistance under the Solid
Waste Disposal Act (42 U.S.C. 6901 et seq.).
Section 5. Federal Power Act
This section provides that nothing in this Title be
construed to affect the obligations of the owner or operator of
a structure under section 215(b)(1) of the Federal Power Act
(16 U.S.C. 824o(b)(1)).''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SOLID WASTE DISPOSAL ACT
TITLE II--SOLID WASTE DISPOSAL
Subtitle A--General Provisions
short title and table of contents
Sec. 1001. This title (hereinafter in this title referred to
as ``this Act''), together with the following table of
contents, may be cited as the ``Solid Waste Disposal Act'':
* * * * * * *
Subtitle D--State or Regional Solid Waste Plans
Sec. 4001. Objectives of subtitle.
* * * * * * *
Sec. 4011. Management and disposal of coal combustion residuals.
* * * * * * *
Subtitle D--State or Regional Solid Waste Plans
* * * * * * *
SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS.
(a) State Permit Programs for Coal Combustion Residuals.--
Each State may adopt, implement, and enforce a coal combustion
residuals permit program if such State provides the
notification required under subsection (b)(1), and the
certification required under subsection (b)(2).
(b) State Actions.--
(1) Notification.--Not later than 6 months after the
date of enactment of this section (except as provided
by the deadline identified under subsection (d)(3)(B)),
the Governor of each State shall notify the
Administrator, in writing, whether such State will
adopt and implement a coal combustion residuals permit
program.
(2) Certification.--
(A) In general.--Not later than 36 months
after the date of enactment of this section
(except as provided in subsection (f)(1)(A)),
in the case of a State that has notified the
Administrator that it will implement a coal
combustion residuals permit program, the head
of the lead State implementing agency shall
submit to the Administrator a certification
that such coal combustion residuals permit
program meets the requirements described in
subsection (c).
(B) Contents.--A certification submitted
under this paragraph shall include--
(i) a letter identifying the lead
State implementing agency, signed by
the head of such agency;
(ii) identification of any other
State agencies involved with the
implementation of the coal combustion
residuals permit program;
(iii) an explanation of how the State
coal combustion residuals permit
program meets the requirements of this
section, including a description of the
State's--
(I) process to inspect or
otherwise determine compliance
with such permit program;
(II) process to enforce the
requirements of such permit
program;
(III) public participation
process for the promulgation,
amendment, or repeal of
regulations for, and the
issuance of permits under, such
permit program;
(IV) statutes, regulations,
or policies pertaining to
public access to information,
such as groundwater monitoring
data; and
(V) statutes, regulations, or
policies pertaining to
structural integrity or dam
safety that may be applied to
structures through such permit
program;
(iv) a certification that the State
has in effect, at the time of
certification, statutes or regulations
necessary to implement a coal
combustion residuals permit program
that meets the requirements described
in subsection (c); and
(v) copies of State statutes and
regulations described in clause (iv).
(C) Updates.--A State may update the
certification as needed to reflect changes to
the coal combustion residuals permit program.
(3) Maintenance of 4005(c) or 3006 program.--In order
to adopt or implement a coal combustion residuals
permit program under this section (including pursuant
to subsection (f)), the State implementing agency shall
maintain an approved permit program or other system of
prior approval and conditions under section 4005(c) or
an authorized program under section 3006.
(c) Requirements for a Coal Combustion Residuals Permit
Program.--A coal combustion residuals permit program shall
consist of the following:
(1) General requirements.--
(A) In general.--The implementing agency
shall--
(i) apply the subset of the revised
criteria described in paragraph (2) to
owners or operators of structures,
including surface impoundments, that
receive coal combustion residuals on or
after the date of enactment of this
section;
(ii) with respect to structures that
are receiving coal combustion residuals
as of the date of enactment of this
section, take the actions required
under paragraph (3);
(iii) impose requirements for surface
impoundments that do not meet certain
criteria pursuant to paragraph (4); and
(iv) require that closure of
structures occur in accordance with
paragraph (5).
(B) Structural integrity.--
(i) Engineering certification.--The
implementing agency shall require that
an independent registered professional
engineer certify that--
(I) the design of each
structure that receives coal
combustion residuals on or
after the date of enactment of
this section is in accordance
with recognized and generally
accepted good engineering
practices for containment of
the maximum volume of coal
combustion residuals and
liquids which can be impounded
therein; and
(II) the construction and
maintenance of the structure
will ensure structural
stability.
(ii) Emergency action plan.--The
implementing agency shall require that
the owner or operator of any structure
that is a surface impoundment that
receives coal combustion residuals on
or after the date of enactment of this
section and that is classified by the
State as posing a high hazard potential
pursuant to the guidelines published by
the Federal Emergency Management Agency
entitled ``Federal Guidelines for Dam
Safety: Hazard Potential Classification
System for Dams'' (FEMA Publication
Number 333) prepare and maintain an
emergency action plan that identifies
responsible persons and actions to be
taken in the event of a dam safety
emergency.
(iii) Inspection.--
(I) In general.--The
implementing agency shall
require that structures that
are surface impoundments that
receive coal combustion
residuals on or after the date
of enactment of this section be
inspected not less than
annually by an independent
registered professional
engineer to assure that the
design, operation, and
maintenance of the surface
impoundment is in accordance
with recognized and generally
accepted good engineering
practices for containment of
the maximum volume of coal
combustion residuals and
liquids which can be impounded
therein, so as to ensure dam
stability.
(II) Potentially hazardous
conditions.--The implementing
agency shall require that if an
inspection under subclause (I),
or a periodic evaluation under
clause (iv), reveals a
potentially hazardous
condition, the owner or
operator of the structure shall
immediately take action to
mitigate the potentially
hazardous condition and notify
appropriate State and local
first responders.
(iv) Periodic evaluation.--The
implementing agency shall require that
structures that are surface
impoundments that receive coal
combustion residuals on or after the
date of enactment of this section be
periodically evaluated for appearances
of structural weakness.
(v) Deficiency.--
(I) In general.--If the head
of the implementing agency
determines that a structure is
deficient with respect to the
requirements in clause (i),
(iii), or (iv), the head of the
agency has the authority to
require action to correct the
deficiency according to a
schedule determined by the
agency.
(II) Uncorrected
deficiencies.--If a deficiency
is not corrected according to
the schedule, the head of the
implementing agency has the
authority to require that the
structure close in accordance
with paragraph (5).
(III) Dam safety
consultation.--In the case of a
structure that is a surface
impoundment, the head of the
implementing agency shall, in
making a determination under
subclause (I), consult with
appropriate State dam safety
officials.
(C) Location.--The implementing agency shall
require that structures that first receive coal
combustion residuals on or after the date of
enactment of this section shall be constructed
with a base located a minimum of 2 feet above
the upper limit of the water table, unless it
is demonstrated to the satisfaction of the
implementing agency that--
(i) the hydrogeologic characteristics
of a structure and surrounding land
would preclude such a requirement; and
(ii) the function and integrity of
the liner system will not be adversely
impacted by contact with the water
table.
(D) Wind dispersal.--
(i) In general.--The implementing
agency shall require that owners or
operators of structures that receive
coal combustion residuals on or after
the date of enactment of this section
address wind dispersal of dust by
requiring cover, or by wetting coal
combustion residuals with water to a
moisture content that prevents wind
dispersal, facilitates compaction, and
does not result in free liquids.
(ii) Alternative methods.--Subject to
the review and approval by the
implementing agency, owners or
operators of structures that receive
coal combustion residuals on or after
the date of enactment of this section
may propose alternative methods to
address wind dispersal of dust that
will provide comparable or more
effective control of dust.
(E) Permits.--The implementing agency shall
require that owners or operators of structures
that receive coal combustion residuals on or
after the date of enactment of this section
apply for and obtain permits incorporating the
requirements of the coal combustion residuals
permit program.
(F) Public availability of information.--
Except for information with respect to which
disclosure is prohibited under section 1905 of
title 18, United States Code, the implementing
agency shall ensure that--
(i) documents for permit
determinations are made available for
public review and comment under the
public participation process described
in subsection (b)(2)(B)(iii)(III) or in
subsection (e)(6), as applicable;
(ii) final determinations on permit
applications are made known to the
public; and
(iii) groundwater monitoring data
collected under paragraph (2) is
publicly available.
(G) Agency authority.--
(i) In general.--The implementing
agency has the authority to--
(I) obtain information
necessary to determine whether
the owner or operator of a
structure is in compliance with
the requirements of this
subsection;
(II) conduct or require
monitoring and testing to
ensure that structures are in
compliance with the
requirements of this
subsection; and
(III) enter, at reasonable
times, any site or premise
subject to the coal combustion
residuals permit program for
the purpose of inspecting
structures and reviewing
records relevant to the design,
operation, and maintenance of
structures.
(ii) Monitoring and testing.--If
monitoring or testing is conducted
under clause (i)(II) by or for the
implementing agency, the implementing
agency shall, if requested, provide to
the owner or operator--
(I) a written description of
the monitoring or testing
completed;
(II) at the time of sampling,
a portion of each sample equal
in volume or weight to the
portion retained by or for the
implementing agency; and
(III) a copy of the results
of any analysis of samples
collected by or for the
implementing agency.
(2) Revised criteria.--The subset of the revised
criteria referred to in paragraph (1)(A)(i) are as
follows:
(A) Design requirements.--For new structures,
and lateral expansions of existing structures,
that first receive coal combustion residuals on
or after the date of enactment of this section,
the revised criteria regarding design
requirements described in section 258.40 of
title 40, Code of Federal Regulations, except
that the leachate collection system
requirements described in section 258.40(a)(2)
of title 40, Code of Federal Regulations, do
not apply to structures that are surface
impoundments.
(B) Groundwater monitoring and corrective
action.--For all structures that receive coal
combustion residuals on or after the date of
enactment of this section, the revised criteria
regarding groundwater monitoring and corrective
action requirements described in subpart E of
part 258 of title 40, Code of Federal
Regulations, except that, for the purposes of
this subparagraph, the revised criteria shall
also include--
(i) for the purposes of detection
monitoring, the constituents boron,
chloride, conductivity, fluoride,
mercury, pH, sulfate, sulfide, and
total dissolved solids; and
(ii) for the purposes of assessment
monitoring, establishing a groundwater
protection standard, and assessment of
corrective measures, the constituents
aluminum, boron, chloride, fluoride,
iron, manganese, molybdenum, pH,
sulfate, and total dissolved solids.
(C) Closure.--For all structures that receive
coal combustion residuals on or after the date
of enactment of this section, in a manner
consistent with paragraph (5), the revised
criteria for closure described in subsections
(a) through (c) and (h) through (j) of section
258.60 of title 40, Code of Federal
Regulations.
(D) Post-closure.--For all structures that
receive coal combustion residuals on or after
the date of enactment of this section, the
revised criteria for post-closure care
described in section 258.61 of title 40, Code
of Federal Regulations, except for the
requirement described in subsection (a)(4) of
that section.
(E) Location restrictions.--The revised
criteria for location restrictions described
in--
(i) for new structures, and lateral
expansions of existing structures, that
first receive coal combustion residuals
on or after the date of enactment of
this section, sections 258.11 through
258.15 of title 40, Code of Federal
Regulations; and
(ii) for existing structures that
receive coal combustion residuals on or
after the date of enactment of this
section, sections 258.11 and 258.15 of
title 40, Code of Federal Regulations.
(F) Air quality.--For all structures that
receive coal combustion residuals on or after
the date of enactment of this section, the
revised criteria for air quality described in
section 258.24 of title 40, Code of Federal
Regulations.
(G) Financial assurance.--For all structures
that receive coal combustion residuals on or
after the date of enactment of this section,
the revised criteria for financial assurance
described in subpart G of part 258 of title 40,
Code of Federal Regulations.
(H) Surface water.--For all structures that
receive coal combustion residuals on or after
the date of enactment of this section, the
revised criteria for surface water described in
section 258.27 of title 40, Code of Federal
Regulations.
(I) Recordkeeping.--For all structures that
receive coal combustion residuals on or after
the date of enactment of this section, the
revised criteria for recordkeeping described in
section 258.29 of title 40, Code of Federal
Regulations.
(J) Run-on and run-off control systems for
land-based units.--For all landfills and other
land-based units, other than surface
impoundments, that receive coal combustion
residuals on or after the date of enactment of
this section, the revised criteria for run-on
and run-off control systems described in
section 258.26 of title 40, Code of Federal
Regulations.
(K) Run-off control systems for surface
impoundments.--For all surface impoundments
that receive coal combustion residuals on or
after the date of enactment of this section,
the revised criteria for run-off control
systems described in section 258.26(a)(2) of
title 40, Code of Federal Regulations.
(3) Permit program implementation for existing
structures.--
(A) Notification.--Not later than the date on
which a State submits a certification under
subsection (b)(2), not later than 30 months
after the Administrator receives notice under
subsection (e)(1)(A), or not later than 36
months after the date of enactment of this
section with respect to a coal combustion
residuals permit program that is being
implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall notify owners or
operators of structures that are receiving coal
combustion residuals as of the date of
enactment of this section within the State of--
(i) the obligation to apply for and
obtain a permit under subparagraph (C);
and
(ii) the requirements referred to in
subparagraph (B).
(B) Compliance with certain requirements.--
Not later than 12 months after the date on
which a State submits a certification under
subsection (b)(2), not later than 42 months
after the Administrator receives notice under
subsection (e)(1)(A), or not later than 48
months after the date of enactment of this
section with respect to a coal combustion
residuals permit program that is being
implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall require owners or
operators of structures that are receiving coal
combustion residuals as of the date of
enactment of this section to comply with--
(i) the requirements under paragraphs
(1)(B)(ii) and (iii), (1)(D), (2)(B),
(2)(F), (2)(H), (2)(J), and (2)(K); and
(ii) the groundwater recordkeeping
requirement described in section
258.29(a)(5) of title 40, Code of
Federal Regulations.
(C) Permits.--
(i) Permit deadline.--Not later than
48 months after the date on which a
State submits a certification under
subsection (b)(2), not later than 78
months after the Administrator receives
notice under subsection (e)(1)(A), or
not later than 84 months after the date
of enactment of this section with
respect to a coal combustion residuals
permit program that is being
implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall issue, with
respect to a structure that is
receiving coal combustion residuals as
of the date of enactment of this
section, a final permit incorporating
the requirements of the coal combustion
residuals permit program, or a final
denial for an application submitted
requesting such a permit.
(ii) Application deadline.--The
implementing agency shall identify, in
collaboration with the owner or
operator of a structure described in
clause (i), a reasonable deadline by
which the owner or operator shall
submit a permit application under such
clause.
(D) Interim operation.--
(i) Prior to deadlines.--With respect
to any period of time on or after the
date of enactment of this section but
prior to the applicable deadline in
subparagraph (B), the owner or operator
of a structure that is receiving coal
combustion residuals as of the date of
enactment of this section may continue
to operate such structure until such
applicable deadline under the
applicable authority in effect.
(ii) Prior to permit.--Unless the
implementing agency determines that the
structure should close pursuant to
paragraph (5), if the owner or operator
of a structure that is receiving coal
combustion residuals as of the date of
enactment of this section meets the
requirements referred to in
subparagraph (B) by the applicable
deadline in such subparagraph, the
owner or operator may operate the
structure until such time as the
implementing agency issues, under
subparagraph (C), a final permit
incorporating the requirements of the
coal combustion residuals permit
program, or a final denial for an
application submitted requesting such a
permit.
(4) Requirements for surface impoundments that do not
meet certain criteria.--
(A) Surface impoundments that require
assessment of corrective measures within 10
years of the date of enactment.--
(i) In general.--In addition to the
groundwater monitoring and corrective
action requirements described in
paragraph (2)(B), the implementing
agency shall require a surface
impoundment that receives coal
combustion residuals on or after the
date of enactment of this section to
comply with the requirements in clause
(ii) of this subparagraph and clauses
(i) and (ii) of subparagraph (D) if the
surface impoundment--
(I) does not--
(aa) have a liner
system described in
section 258.40(b) of
title 40, Code of
Federal Regulations;
and
(bb) meet the design
criteria described in
section 258.40(a)(1) of
title 40, Code of
Federal Regulations;
and
(II) within 10 years after
the date of enactment of this
section, is required under
section 258.56(a) of title 40,
Code of Federal Regulations, to
undergo an assessment of
corrective measures for any
constituent covered under
subpart E of part 258 of title
40, Code of Federal
Regulations, or otherwise
identified in paragraph
(2)(B)(ii) of this subsection,
for which assessment
groundwater monitoring is
required.
(ii) Deadline to meet groundwater
protection standard.--Except as
provided in subparagraph (C), the
implementing agency shall require that
the groundwater protection standard,
for surface impoundments identified in
clause (i) of this subparagraph,
established by the implementing agency
under section 258.55(h) or 258.55(i) of
title 40, Code of Federal Regulations,
for any constituent for which
corrective measures are required shall
be met--
(I) as soon as practicable at
the relevant point of
compliance, as described in
section 258.40(d) of title 40,
Code of Federal Regulations;
and
(II) not later than 10 years
after the date of enactment of
this section.
(B) Surface impoundments subject to a state
corrective action requirement as of the date of
enactment.--
(i) In general.--In addition to the
groundwater monitoring and corrective
action requirements described in
paragraph (2)(B), the implementing
agency shall require a surface
impoundment that receives coal
combustion residuals on or after the
date of enactment of this section to
comply with the requirements in clause
(ii) of this subparagraph and clauses
(i) and (ii) of subparagraph (D) if the
surface impoundment--
(I) does not--
(aa) have a liner
system described in
section 258.40(b) of
title 40, Code of
Federal Regulations;
and
(bb) meet the design
criteria described in
section 258.40(a)(1) of
title 40, Code of
Federal Regulations;
and
(II) as of the date of
enactment of this section, is
subject to a State corrective
action requirement.
(ii) Deadline to meet groundwater
protection standard.--Except as
provided in subparagraph (C), the
implementing agency shall require that
the groundwater protection standard,
for surface impoundments identified in
clause (i) of this subparagraph,
established by the implementing agency
under section 258.55(h) or 258.55(i) of
title 40, Code of Federal Regulations,
for any constituent for which
corrective measures are required shall
be met--
(I) as soon as practicable at
the relevant point of
compliance, as described in
section 258.40(d) of title 40,
Code of Federal Regulations;
and
(II) not later than 8 years
after the date of enactment of
this section.
(C) Extension of deadline.--
(i) In general.--Except as provided
in clause (ii) of this subparagraph,
the deadline for meeting a groundwater
protection standard under subparagraph
(A)(ii) or (B)(ii) may be extended by
the implementing agency, after
opportunity for public notice and
comment under the public participation
process described in subsection
(b)(2)(B)(iii)(III), or in subsection
(e)(6) based on--
(I) the effectiveness of any
interim measures implemented by
the owner or operator of the
facility under section
258.58(a)(3) of title 40, Code
of Federal Regulations;
(II) the level of progress
demonstrated in meeting the
groundwater protection
standard;
(III) the potential for other
adverse human health or
environmental exposures
attributable to the
contamination from the surface
impoundment undergoing
corrective action; and
(IV) the lack of available
alternative management capacity
for the coal combustion
residuals and related materials
managed in the impoundment at
the facility at which the
impoundment is located if the
owner or operator has used best
efforts, as necessary, to
design, obtain any necessary
permits, finance, construct,
and render operational the
alternative management capacity
during the time period for
meeting a groundwater
protection standard in
subparagraph (A)(ii) or
(B)(ii).
(ii) Exception.--The deadline under
subparagraph (A)(ii) or (B)(ii) shall
not be extended if there has been
contamination of public or private
drinking water systems attributable to
a surface impoundment undergoing
corrective action, unless the
contamination has been addressed by
providing a permanent replacement water
system.
(D) Additional requirements.--
(i) Closure.--If the deadline under
subparagraph (A)(ii), (B)(ii), or (C)
is not satisfied, the surface
impoundment shall cease receiving coal
combustion residuals and initiate
closure under paragraph (5).
(ii) Interim measures.--
(I) In general.--Except as
provided in subclause (II), not
later than 90 days after the
date on which the assessment of
corrective measures is
initiated, the owner or
operator of a surface
impoundment described in
subparagraph (A) or (B) shall
implement interim measures, as
necessary, under the factors in
section 258.58(a)(3) of title
40, Code of Federal
Regulations.
(II) Impoundments subject to
state corrective action
requirement as of the date of
enactment.--Subclause (I) shall
only apply to surface
impoundments subject to a State
corrective action requirement
as of the date of enactment of
this section if the owner or
operator has not implemented
interim measures, as necessary,
under the factors in section
258.58(a)(3) of title 40, Code
of Federal Regulations.
(E) Surface impoundments that require
assessment of corrective measures more than 10
years after date of enactment.--
(i) In general.--In addition to the
groundwater monitoring and corrective
action requirements described in
paragraph (2)(B), the implementing
agency shall require a surface
impoundment that receives coal
combustion residuals on or after the
date of enactment of this section to
comply with the requirements in clause
(ii) if the surface impoundment--
(I) does not--
(aa) have a liner
system described in
section 258.40(b) of
title 40, Code of
Federal Regulations;
and
(bb) meet the design
criteria described in
section 258.40(a)(1) of
title 40, Code of
Federal Regulations;
and
(II) more than 10 years after
the date of enactment of this
section, is required under
section 258.56(a) title 40,
Code of Federal Regulations, to
undergo an assessment of
corrective measures for any
constituent covered under
subpart E of part 258 of title
40, Code of Federal
Regulations, or otherwise
identified in paragraph
(2)(B)(ii) of this subsection,
for which assessment
groundwater monitoring is
required.
(ii) Requirements.--
(I) Closure.--The surface
impoundments identified in
clause (i) shall cease
receiving coal combustion
residuals and initiate closure
in accordance with paragraph
(5) after alternative
management capacity at the
facility is available for the
coal combustion residuals and
related materials managed in
the impoundment.
(II) Best efforts.--The
alternative management capacity
shall be developed as soon as
practicable with the owner or
operator using best efforts to
design, obtain necessary
permits for, finance,
construct, and render
operational the alternative
management capacity.
(III) Alternative capacity
management plan.--The owner or
operator shall, in
collaboration with the
implementing agency, prepare a
written plan that describes the
steps necessary to develop the
alternative management capacity
and includes a schedule for
completion.
(IV) Public participation.--
The plan described in subclause
(III) shall be subject to
public notice and comment under
the public participation
process described in subsection
(b)(2)(B)(iii)(III) or in
subsection (e)(6), as
applicable.
(5) Closure.--
(A) In general.--If it is determined by the
implementing agency that a structure should
close because the requirements of a coal
combustion residuals permit program are not
being satisfied with respect to such structure,
or if it is determined by the owner or operator
that a structure should close, the time period
and method for the closure of such structure
shall be set forth in a closure plan that
establishes a deadline for completion of
closure as soon as practicable and that takes
into account the nature and the site-specific
characteristics of the structure to be closed.
(B) Surface impoundment.--In the case of a
surface impoundment, the closure plan under
subparagraph (A) shall require, at a minimum,
the removal of liquid and the stabilization of
remaining waste, as necessary to support the
final cover.
(d) Federal Review of State Permit Programs.--
(1) In general.--The Administrator shall provide to a
State written notice and an opportunity to remedy
deficiencies in accordance with paragraph (3) if at any
time the State--
(A) does not satisfy the notification
requirement under subsection (b)(1);
(B) has not submitted a certification
required under subsection (b)(2);
(C) does not satisfy the maintenance
requirement under subsection (b)(3);
(D) is not implementing a coal combustion
residuals permit program, with respect to which
the State has submitted a certification under
subsection (b)(2), that meets the requirements
described in subsection (c);
(E) is not implementing a coal combustion
residuals permit program, with respect to which
the State has submitted a certification under
subsection (b)(2)--
(i) that is consistent with such
certification; and
(ii) for which the State continues to
have in effect statutes or regulations
necessary to implement such program; or
(F) does not make available to the
Administrator, within 90 days of a written
request, specific information necessary for the
Administrator to ascertain whether the State
has satisfied the requirements described in
subparagraphs (A) through (E).
(2) Request.--If a request described in paragraph
(1)(F) is proposed pursuant to a petition to the
Administrator, the Administrator shall only make the
request if the Administrator does not possess the
information necessary to ascertain whether the State
has satisfied the requirements described in
subparagraphs (A) through (E) of such paragraph.
(3) Contents of notice; deadline for response.--A
notice provided under paragraph (1) shall--
(A) include findings of the Administrator
detailing any applicable deficiencies described
in subparagraphs (A) through (F) of paragraph
(1); and
(B) identify, in collaboration with the
State, a reasonable deadline by which the State
shall remedy such applicable deficiencies,
which shall be--
(i) in the case of a deficiency
described in subparagraphs (A) through
(E) of paragraph (1), not earlier than
180 days after the date on which the
State receives the notice; and
(ii) in the case of a deficiency
described in paragraph (1)(F), not
later than 90 days after the date on
which the State receives the notice.
(4) Criteria for determining deficiency of State
permit program.--In making a determination whether a
State has failed to satisfy the requirements described
in subparagraphs (A) through (E) of paragraph (1), or a
determination under subsection (e)(1)(B), the
Administrator shall consider, as appropriate--
(A) whether the State's statutes or
regulations to implement a coal combustion
residuals permit program are not sufficient to
meet the requirements described in subsection
(c) because of--
(i) failure of the State to
promulgate or enact new statutes or
regulations when necessary; or
(ii) action by a State legislature or
court striking down or limiting such
State statutes or regulations;
(B) whether the operation of the State coal
combustion residuals permit program fails to
comply with the requirements of subsection (c)
because of--
(i) failure of the State to issue
permits as required in subsection
(c)(1)(E);
(ii) repeated issuance of permits by
the State which do not meet the
requirements of subsection (c);
(iii) failure of the State to comply
with the public participation
requirements of this section; or
(iv) failure of the State to
implement corrective action
requirements as described in subsection
(c)(2)(B); and
(C) whether the enforcement of a State coal
combustion residuals permit program fails to
comply with the requirements of this section
because of--
(i) failure to act on violations of
permits, as identified by the State; or
(ii) repeated failure by the State to
inspect or otherwise determine
compliance pursuant to the process
identified in subsection
(b)(2)(B)(iii)(I).
(e) Implementation by Administrator.--
(1) Federal backstop authority.--The Administrator
shall implement a coal combustion residuals permit
program for a State only if--
(A) the Governor of the State notifies the
Administrator under subsection (b)(1) that the
State will not adopt and implement a permit
program;
(B) the State has received a notice under
subsection (d) and the Administrator
determines, after providing a 30-day period for
notice and public comment, that the State has
failed, by the deadline identified in the
notice under subsection (d)(3)(B), to remedy
the deficiencies detailed in the notice under
subsection (d)(3)(A); or
(C) the State informs the Administrator, in
writing, that such State will no longer
implement such a permit program.
(2) Review.--A State may obtain a review of a
determination by the Administrator under this
subsection as if the determination was a final
regulation for purposes of section 7006.
(3) Other structures.--For structures that receive
coal combustion residuals on or after the date of
enactment of this section located on property within
the exterior boundaries of a State that the State does
not have authority or jurisdiction to regulate, the
Administrator shall implement a coal combustion
residuals permit program only for those structures.
(4) Requirements.--If the Administrator implements a
coal combustion residuals permit program for a State
under paragraph (1) or (3), the permit program shall
consist of the requirements described in subsection
(c).
(5) Enforcement.--
(A) In general.--If the Administrator
implements a coal combustion residuals permit
program for a State under paragraph (1)--
(i) the authorities referred to in
section 4005(c)(2)(A) shall apply with
respect to coal combustion residuals
and structures for which the
Administrator is implementing the coal
combustion residuals permit program;
and
(ii) the Administrator may use those
authorities to inspect, gather
information, and enforce the
requirements of this section in the
State.
(B) Other structures.--If the Administrator
implements a coal combustion residuals permit
program under paragraph (3)--
(i) the authorities referred to in
section 4005(c)(2)(A) shall apply with
respect to coal combustion residuals
and structures for which the
Administrator is implementing the coal
combustion residuals permit program;
and
(ii) the Administrator may use those
authorities to inspect, gather
information, and enforce the
requirements of this section for the
structures for which the Administrator
is implementing the coal combustion
residuals permit program.
(6) Public participation process.--If the
Administrator implements a coal combustion residuals
permit program for a State under this subsection, the
Administrator shall provide a 30-day period for the
public participation process required in paragraphs
(1)(F)(i), (4)(C)(i), and (4)(E)(ii)(IV) of subsection
(c).
(f) State Control After Implementation by Administrator.--
(1) State control.--
(A) New adoption, or resumption of, and
implementation by state.--For a State for which
the Administrator is implementing a coal
combustion residuals permit program under
subsection (e)(1)(A), or subsection (e)(1)(C),
the State may adopt and implement such a permit
program by--
(i) notifying the Administrator that
the State will adopt and implement such
a permit program;
(ii) not later than 6 months after
the date of such notification,
submitting to the Administrator a
certification under subsection (b)(2);
and
(iii) receiving from the
Administrator--
(I) a determination, after
providing a 30-day period for
notice and public comment, that
the State coal combustion
residuals permit program meets
the requirements described in
subsection (c); and
(II) a timeline for
transition of control of the
coal combustion residuals
permit program.
(B) Remedying deficient permit program.--For
a State for which the Administrator is
implementing a coal combustion residuals permit
program under subsection (e)(1)(B), the State
may adopt and implement such a permit program
by--
(i) remedying only the deficiencies
detailed in the notice pursuant to
subsection (d)(3)(A); and
(ii) receiving from the
Administrator--
(I) a determination, after
providing a 30-day period for
notice and public comment, that
the deficiencies detailed in
such notice have been remedied;
and
(II) a timeline for
transition of control of the
coal combustion residuals
permit program.
(2) Review of determination.--
(A) Determination required.--The
Administrator shall make a determination under
paragraph (1) not later than 90 days after the
date on which the State submits a certification
under paragraph (1)(A)(ii), or notifies the
Administrator that the deficiencies have been
remedied pursuant to paragraph (1)(B)(i), as
applicable.
(B) Review.--A State may obtain a review of a
determination by the Administrator under
paragraph (1) as if such determination was a
final regulation for purposes of section 7006.
(3) Implementation during transition.--
(A) Effect on actions and orders.--Program
requirements of, and actions taken or orders
issued pursuant to, a coal combustion residuals
permit program shall remain in effect if--
(i) a State takes control of its coal
combustion residuals permit program
from the Administrator under paragraph
(1); or
(ii) the Administrator takes control
of a coal combustion residuals permit
program from a State under subsection
(e).
(B) Change in requirements.--Subparagraph (A)
shall apply to such program requirements,
actions, and orders until such time as--
(i) the implementing agency changes
the requirements of the coal combustion
residuals permit program with respect
to the basis for the action or order;
or
(ii) the State or the Administrator,
whichever took the action or issued the
order, certifies the completion of a
corrective action that is the subject
of the action or order.
(4) Single permit program.--If a State adopts and
implements a coal combustion residuals permit program
under this subsection, the Administrator shall cease to
implement the permit program implemented under
subsection (e)(1) for such State.
(g) Effect on Determination under 4005(c) or 3006.--The
Administrator shall not consider the implementation of a coal
combustion residuals permit program by the Administrator under
subsection (e) in making a determination of approval for a
permit program or other system of prior approval and conditions
under section 4005(c) or of authorization for a program under
section 3006.
(h) Authority.--
(1) State authority.--Nothing in this section shall
preclude or deny any right of any State to adopt or
enforce any regulation or requirement respecting coal
combustion residuals that is more stringent or broader
in scope than a regulation or requirement under this
section.
(2) Authority of the administrator.--
(A) In general.--Except as provided in
subsections (d) and (e) and section 6005, the
Administrator shall, with respect to the
regulation of coal combustion residuals, defer
to the States pursuant to this section.
(B) Imminent hazard.--Nothing in this section
shall be construed as affecting the authority
of the Administrator under section 7003 with
respect to coal combustion residuals.
(C) Enforcement assistance only upon
request.--Upon request from the head of a lead
State agency that is implementing a coal
combustion residuals permit program, the
Administrator may provide to such State agency
only the enforcement assistance requested.
(D) Concurrent enforcement.--Except as
provided in subparagraph (C), the Administrator
shall not have concurrent enforcement authority
when a State is implementing a coal combustion
residuals permit program, including during any
period of interim operation described in
subsection (c)(3)(D).
(E) Other authority.--The Administrator shall
not have authority to finalize the proposed
rule published at pages 35128 through 35264 of
volume 75 of the Federal Register (June 21,
2010).
(F) Other response authority.--Nothing in
this section shall be construed as affecting
the authority of the Administrator under the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.) with respect to coal
combustion residuals.
(3) Citizen suits.--Nothing in this section shall be
construed to affect the authority of a person to
commence a civil action in accordance with section
7002.
(i) Mine Reclamation Activities.--A coal combustion residuals
permit program implemented by the Administrator under
subsection (e) shall not apply to the utilization, placement,
and storage of coal combustion residuals at surface mining and
reclamation operations.
(j) Definitions.--In this section:
(1) Coal combustion residuals.--The term ``coal
combustion residuals'' means--
(A) the solid wastes listed in section
3001(b)(3)(A)(i), including recoverable
materials from such wastes;
(B) coal combustion wastes that are co-
managed with wastes produced in conjunction
with the combustion of coal, provided that such
wastes are not segregated and disposed of
separately from the coal combustion wastes and
comprise a relatively small proportion of the
total wastes being disposed in the structure;
(C) fluidized bed combustion wastes;
(D) wastes from the co-burning of coal with
non-hazardous secondary materials, provided
that coal makes up at least 50 percent of the
total fuel burned; and
(E) wastes from the co-burning of coal with
materials described in subparagraph (A) that
are recovered from monofills.
(2) Coal combustion residuals permit program.--The
term ``coal combustion residuals permit program'' means
all of the authorities, activities, and procedures that
comprise the system of prior approval and conditions
implemented by or for a State to regulate the
management and disposal of coal combustion residuals.
(3) Code of federal regulations.--The term ``Code of
Federal Regulations'' means the Code of Federal
Regulations (as in effect on the date of enactment of
this section) or any successor regulations.
(4) Implementing agency.--The term ``implementing
agency'' means the agency responsible for implementing
a coal combustion residuals permit program for a State,
which shall either be the lead State implementing
agency identified under subsection (b)(2)(B)(i) or the
Administrator pursuant to subsection (e).
(5) Permit; prior approval and conditions.--Except as
provided in subsections (b)(3) and (g), the terms
``permit'' and ``prior approval and conditions'' mean
any authorization, license, or equivalent control
document that incorporates the requirements of
subsection (c).
(6) Revised criteria.--The term ``revised criteria''
means the criteria promulgated for municipal solid
waste landfill units under section 4004(a) and under
section 1008(a)(3), as revised under section 4010(c).
(7) Structure.--
(A) In general.--Except as provided in
subparagraph (B), the term ``structure'' means
a landfill, surface impoundment, or other land-
based unit which receives, or is intended to
receive, coal combustion residuals.
(B) De minimis receipt.--The term
``structure'' does not include any land-based
unit that receives only de minimis quantities
of coal combustion residuals if the presence of
coal combustion residuals is incidental to the
material managed in the unit.
* * * * * * *
DISSENTING VIEWS BY REPRESENTATIVE JOHN D. DINGELL
This is a poor piece of legislation that does nothing to
address the underlying issue of coal combustion residual
disposal or beneficial reuse through recycling. It is not ready
for primetime and stands the traditional way in which we have
dealt with the affairs of EPA on its ear. The minority side is
prepared to work with our Republican friends to write a good
bill. It is easily possible for this committee to write such a
piece of legislation. However, the majority has decided to
recycle language from the Senate that the Senate admits needs
significant revisions.
By allowing states to each create their own program, what
we're doing is setting up so we'll have some more fine spills
of this nasty stuff. The spill in Wisconsin into Lake Michigan
demonstrated that a spill in one state has the potential to
affect neighboring state. This legislation does nothing to
address the issue of legacy coal ash retention ponds that would
not be covered by this bill nor does it provide adequate
protections to sources of ground or surface water. Like other
environmental laws and regulations that have been in effect for
decades, we need a national standard to ensure that treasures
such as the Great Lakes and our scenic waters are safe from
these spills.
I understand this is an issue that must be addressed. The
regulations proposed by EPA may prevent the beneficial use and
recycling of coal ash and would hinder not only utilities but
also the construction industry. However, as much as I want
there to be momentum to move a solution forward, I do not
believe this legislation does enough to address the above
concerns. The minority would be glad to work and we're glad to
help the majority, but we certainly don't want to be
embarrassed by putting anything like this on the House floor
and then telling people how it's going to help because I know,
as sure as God made green apples, that we're going to see very
shortly that people are going to be denouncing this
legislation.
John D. Dingell.
DISSENTING VIEWS BY REPRESENTATIVES HENRY A. WAXMAN AND PAUL D. TONKO
The Coal Residuals Reuse and Management Act of 2013 would
abandon the proven models of environmental protection and adopt
an approach that we have every reason to believe would fail to
protect human health and the environment if enacted. This
proposal will not ensure that coal ash is disposed of safely,
that groundwater is protected from contamination, that air
pollution is adequately controlled, or that catastrophic dam
failures are prevented.
THE BILL DOES NOT INCLUDE A STANDARD OF PROTECTION
The Resource Conservation and Recovery Act (RCRA) was
enacted to protect public health and the environment from
unsafe disposal of solid waste. It created duties reserved to
the EPA and programs that could be delegated to the states.
Like other environmental statutes, Congress required state
delegation under RCRA to be held to a federal standard of
protection. For instance, the law requires that state programs
governing municipal solid waste ``protect human health and the
environment.'' These standards are the yardsticks by which it
is determined whether a state's efforts are adequate, and they
ensure a consistent level of effort and protection throughout
the nation. During the full committee markup of this bill, it
was clearly stated by majority counsel that the standard of
protection in RCRA would apply to all wastes under RCRA with
the exception of coal ash.\1\
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\1\House Committee on Energy and Commerce, Full Committee Markup of
H.R. 2218, the ``Coal Residuals Reuse and Management Act of 2013;''
H.R. 2226, the ``Federal and State Partnership for Environmental
Protection Act of 2013;'' H.R. 2279, the ``Reducing Excessive Deadline
Obligations Act of 2013;'' and H.R. 2318, the ``Federal Facility
Accountability Act of 2013,'' 113th Cong. (Jun. 19, 2013).
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Standards of protection are important because they ensure
that every American family enjoys a basic level of protection.
They prevent a race to the bottom among the states in which a
state willing to have the laxest protections becomes the
dumping ground for neighboring states. And they prevent the
unfairness of one state allowing a facility within its borders
to contaminate an adjacent state.
The states have recognized the value of federal standards
of protection. According to the Environmental Council of the
States, ``EPA provides great value in achieving protection of
human health and the environment by fulfilling numerous
important functions, including; establishing minimum national
standards [and] ensuring state-to-state consistency in the
implementation of those national standards.''\2\
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\2\Environmental Council of the States, Resolution 00-1, On
Environmental Federalism, Revised Mar. 20, 2012 (online at
www.ecos.org/section/policy/resolution).
---------------------------------------------------------------------------
Although the majority claims in the Committee report that
the bill establishes a federal standard of protection by
setting some ``minimum requirements,'' these minimum
requirements do not ensure human health or the environment will
be protected. Moreover, this use of the term ``federal
standard'' is inconsistent with the historical use of the term
in environmental policy and with the commonly understood
definition of the term. The nonpartisan Congressional Research
Service (CRS) has examined the legislation and found that it
does not establish a federal standard of protection in the way
that term has ever been used.\3\ By having a set of minimum
requirements that are open to state interpretation, the bill
does not create a nationally consistent level of protection.
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\3\Congressional Research Service, Response to Committee Questions
on Coal Ash Recycling and Oversight Act of 2013 (Jun. 4, 2013).
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Specifically, the Congressional Research Service has found
that nothing in the bill ``requires agencies implementing the
permit program to establish criteria applicable to [coal ash]
structures that will be those necessary to achieve a specific
federal standard of protection.''\4\
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\4\Id.
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The proponents of this legislation have been fiercely
opposed to ensuring that state programs protect public health
and the environment. A democratic amendment offered at the full
committee markup to hold state coal ash programs to the same
legal standard of protection as other wastes under RCRA was
defeated in a party line vote.
If enacted, this legislation will not ensure a consistent
national standard to protect against the risks of unsafe coal
ash or guarantee that state programs will be protective.
COAL ASH POSES SERIOUS RISKS TO HUMAN HEALTH AND THE ENVIRONMENT
The Environmental Protection Agency (EPA) has documented
groundwater contamination from coal ash disposal in 12 states
and documented potential groundwater contamination from coal
ash in 17 states.\5\ These are coal ash disposal sites where
poor disposal practices are contaminating ground water,
polluting surface water and harming property values.\6\ In
fact, three of those sites are now on the National Priority
List for cleanup under Superfund. According to public interest
stakeholders, the numbers of damage cases are much higher.
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\5\U.S. Environmental Protection Agency, Hazardous and Solid Waste
Management System; Identification and Listing of Special Wastes;
Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed.
Reg. 35128 at 35143 (Jun. 21, 2010).
\6\Id. at 35146.
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Risks from uncontrolled dust have also been documented. In
Gambrills, Maryland, toxic dust from a coal ash disposal site
blew into neighboring homes posing threats to the community's
respiratory health.
Coal ash impoundments can also catastrophically fail as
happened in Kingston, Tennessee. EPA is currently conducting
inspections of existing coal ash impoundments for structural
integrity issues. At this time, 28% of impoundments inspected
have received a ``poor'' rating. Those receiving poor ratings
include 11 dams that have been rated ``high-hazard'' because
their failure will likely lead to the loss of human life.\7\ At
least one impoundment, Dominion's Chesapeake Energy Center in
Chesapeake, Virginia, was required to address ``urgent''
recommendations, which EPA said, ``require immediate attention
to ensure the structural integrity of the impoundment in the
near term.''\8\
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\7\U.S. Environmental Protection Agency, Coal Combustion Residuals
Impoundment Assessment Reports (online at www.epa.gov/osw/nonhaz/
industrial/special/fossil/surveys2/).
\8\Letter from Suzanne Rudzinski, Director of the Office of
Resource Conservation and Recovery, U.S. Environmental Protection
Agency to Pamela Faggert, Vice President and Chief Executive Officer,
Dominion Resources Services (Jan. 7.2011) (online at www.epa.gov/osw/
nonhaz/industrial/special/fossil/surveys2/dom-chesa-power-request.pdf).
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These risks are real, but unfortunately H.R. 2218 will not
meaningfully address them.
THE MINIMUM CRITERIA ARE NOT SUFFICIENT TO PROTECT HUMAN HEALTH AND THE
ENVIRONMENT
The majority's Committee report states that the minimum
requirements set out in the bill will be protective of human
health and the environment. However, the requirements do not
include the criteria necessary to protect human health and the
environment from the risks of coal ash.
For example, the bill does not require existing
impoundments that continue receiving coal ash after enactment
to be retrofitted with simple liners. Preventing groundwater
contamination is more effective and cheaper than cleaning it
up, but the bill does not require this simple safeguard to
prevent contamination.
Inexplicably, the legislation doesn't require an
impoundment to control pollution until 10 years after
groundwater contamination has been documented. Even then the
legislation allows the impoundment to get additional deadline
extensions or to avoid the requirement altogether by closing.
Protecting human health and the environment would require
preventing groundwater contamination, not allowing it to
continue for ten or more years after it is documented.
According to EPA, its most recent risk assessment for coal
ash found ``very high potential risks from unlined surface
impoundments'' including cancer and noncancer risks to the
public and significant risks to the environment.\9\
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\9\U.S. Environmental Protection Agency, Hazardous and Solid Waste
Management System; Identification and Listing of Special Wastes;
Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed.
Reg. 35128 at 35144 (Jun. 21, 2010).
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Representative Waxman offered an amendment during Committee
consideration to require state programs to include measures to
prevent groundwater contamination, but the amendment was
defeated in a nearly party line vote.
THE BILL LACKS FEDERAL BACKSTOP ENFORCEMENT AUTHORITY
This legislation lacks provisions to ensure that states
enforce the permit programs for disposal of coal ash they put
in place. That means that when a state fails to implement their
program for coal ash disposal in a way that protects human
health and the environment, there is no effective way for the
EPA to intervene to ensure the necessary safeguards.
This limitation diverges from the proven model of
environmental delegation. According to a recent report by the
Congressional Research Service, in states that have been
delegated implementation of federal pollution control laws,
``EPA retains the authority and responsibility as determined by
each statute to take enforcement measures, generally taking
action when there is a violation of an EPA order or consent
decree, or when the federal government deems a state to have
failed to respond to a major violation in a timely and
appropriate' manner.''\10\ CRS concluded that this legislation
fails to include these provisions. Instead, under this bill, if
a state fails to do an adequate job of enforcing its program,
EPA has only one remedy. EPA can take over a state program when
the state has failed to remedy deficiencies in its program by a
reasonable deadline set in collaboration with the state.
However, such a takeover is highly unlikely to be taken in all
but the most extreme circumstances and should offer little
comfort to a community facing contamination in state where the
state refuses to meaningfully act.
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\10\Congressional Research Service, Federal Pollution Control Laws:
How are They Enforced? (Jun. 18, 2013) (RL34384).
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There are current examples of states failing to act to
protect their citizens from unsafe and unpermitted releases.
For example, in Labadie, Missouri, the state has known for over
two decades of a leak that has been gushing 50,000 gallons of
toxic coal waste a day, and yet nothing has been done about it.
In 2011, the EPA Inspector General found that ``state
enforcement programs frequently do not meet national goals and
states do not always take necessary enforcement actions.''\11\
Additionally, the IG found that ``state enforcement remains
inconsistent across the country, providing unequal
environmental benefits to the public and an unlevel playing
field for regulated industries.''\12\
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\11\U.S. Environmental Protection Agency, Office of Inspector
General, EPA Must Improve Oversight of State Enforcement (Dec. 9, 2011)
(12-P-0113) (online at www.epa.gov/oig/reports/2012/20111209-12-P-
0113.pdf).
\12\Id.
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Representative Rush offered an amendment during Committee
consideration to allow federal backstop enforcement authority,
but the amendment failed on a party line vote.
THE BILL WILL NOT PROTECT VULNERABLE POPULATIONS
Coal ash contains toxic chemicals, including arsenic, lead,
hexavalent chromium, and mercury. These and other chemicals
pose a particular risk to certain vulnerable populations,
including children, pregnant women, and workers.
Additionally, low-income communities and communities of
color shoulder a disproportionate share of the health risks
from disposal of coal combustion waste, as with so many
environmental issues. Almost 70% of coal ash impoundments in
the United States are in areas where household income is lower
than the national median. For example, in Louisa, Kentucky,
where the Big Sandy coal ash storage site is located, more than
29% of the community lives below the poverty line.
When the Tennessee Valley Authority coal ash impoundment in
Kingston, Tennessee, failed, it released 5.4 million cubic
yards of toxic sludge, blanketing the Emory River and 300 acres
of surrounding land, and creating a Superfund site that could
cost up to $1.2 billion to remediate. The sludge from that
spill was removed and disposed of in a municipal solid waste
landfill in Uniontown, Alabama, where 45% of the population
falls below the poverty line.
Several homes are within 100 feet of the landfill where the
dumping occurred. The local residents protested the decision,
but they were unable to stop the dumping. Dust from the ash was
not controlled, and it contaminated their homes, gardens and
property. Sulfurous gases blew off the landfill, making people
sick. Residents have experienced respiratory illness,
headaches, dizziness, nausea, and vomiting. Runoff from the
landfill into residential areas has shown arsenic levels 80
times the level allowed under the Safe Drinking Water Act.
Now, the company that operated the landfill has declared
bankruptcy, and this community will be unable to recover
damages for the harms they have suffered.
Coal ash disposal sites directly impact the health,
livelihood, and home values for communities living around these
dump sites, but the bill does nothing to ensure that these
communities are protected from disproportionate adverse
impacts. An amendment offered by Representative Christensen to
require that state coal ash permit programs protect vulnerable
populations including hot-spot communities was defeated in a
nearly party line vote.
CHANGES IN THE MOST RECENT VERSION DO NOT ADDRESS THESE ISSUES
This bill is based on the proposal that 90% of Democrats
opposed when it was considered on the House floor in September
of last year. It has been exhaustively analyzed by the
Congressional Research Service and found severely wanting. And
it has failed to get sufficient support in the U.S. Senate.
The bill reported from the Committee includes a number of
small changes from the original discussion draft, none of which
were drafted with the input of the Democratic members of the
Committee. Some have little substantive effect. Some represent
modest improvements. And some make the proposal even more
problematic.
For instance, the legislation appears to clarify that EPA
cannot find a state coal ash disposal program to be deficient
on the basis that the state program is allowing public health
to be harmed or groundwater to be contaminated. This
clarification makes the legislation even more unworkable than
the version considered during the last Congress and exacerbates
the issues identified in previous versions of the legislation.
For the reasons stated above, we dissent from the views
expressed in the Committee's report.
Henry A. Waxman.
Paul D. Tonko.